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tv   Confirmation Hearing for Supreme Court Nominee Ketanji Brown Jackson Day 2  CSPAN  March 22, 2022 5:00pm-10:16pm EDT

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introduced the bipartisan measure for the kids online intd the online safety act that will provide a more modern solution to a more modern problem, to update the law to account for the role of social media in our ongoing and aggravating mental health crisis in this country. do you agree that it helps the supreme court, and judges in general, to do their job when congress updates our statutes to account for technological change? judge jackson: thank you, senator. the role of the court is to interpret statutes when there are disputes related to the statutes. and, in circumstances in which statutes have not been updated,
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i don't think it's surprising to note that there are disputes about the meaning of the statutes, about how it applies, and so, to the extent that congress undertakes to make amendments and make the changes, i think it helps courts. maybe there will be fewer disputes or easier disputes to resolve. sen. blumenthal: easier disputes to resolve in the sense that -- and i've seen it happen, a judge will say, what congress meant to do in this kind of situation because this law was written at a time when none of this stuff now existed. i'm sure you've faced that situation. i think it's true that social media and the dangers to children as a result of the toxic content that they often find, and often seemingly are
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addicted to use again, and again, and again, because it's part of the is this model of social media and big tech platforms. judge jackson: yes, i have faced this situation. one of my cases being alliance of artists recording companies versus general motors is a case that i ended up writing a couple of opinions about. it involved a statute of congress related to digital recording audio devices, and whether or not royalties were required for the purchase of those kinds of devices. it was enacted at a time in which recording technology was at a different stage than it is now. disputes arose that came before me regarding whether or not to apply the royalty requirement in that statute to modern recording
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devices. in particular, the recording devices that are now in automobiles when you take your cd and put it in your own car and record onto the hard drive of your car, is that the same thing as putting your cd and one of those machines that record from cd to cd and you give the second recording to all of your friends? that was what the statute was originally meant to cover. the question was whether recording to your own car's hard drive counted. it was a very interesting interpretive exercise, but it was the kind of thing in which i was focused on trying to ascertain what, based on the text of the statute and the definitions of the statute, what congress intended this statute
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to cover. sen. blumenthal: and, cars, other devices, appliances at home collect huge amounts of data, don't they? as consumers, we feel we own that data. it's ours. but it can be bought and sold in exchanged and mined in a way that consumers have no consent over. and it enhances the dominance of just a few of those tech companies, just a few of those corporations, corporate power is emboldened and enabled, in many respects, by the end amount -- by the amount of data they collect. there is forest arbitration. we have a record of it today. complaints about sexual harassment, which, fortunately, we have addressed. i have been proud to work on the ending forced arbitration of
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sexual assault and sexual harassment act, which president biden signed after we passed it just a few weeks ago. i've heard harrowing stories from survivors of sexual assault and victims of workplace harassment who were silenced and not just by forced arbitration. forced arbitration applies to everybody who has a cell phone. you have a forced arbitration agreement. many workers have forced arbitration agreements. nursing homes have forced arbitration agreements. the point is that you have dedicated your life to access to the court the right of a trial, the right to a jury, the right to a judge. none of it is possible where there is a forced arbitration agreement, that's why i've worked on a measure called the
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"fair act" that would make any forced predispute arbitration agreement invalid and unenforceable if both sides want -- unenforceable. if both sides want arbitration, that's fine, but access to the court should be available to everyone. i know you are limited to what you can say about measures and policy issues, but i hope that you will consider the trend that the court has adopted in support of forced arbitration and denial of rights like class action, and review whether they are appropriate. let me just finish with a couple of quick points. on the harvard log review article, on registration of sex offenders, convicted sex offenders, i must say i read
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this article several times. in my view, it is an analysis not advocacy. would you agree? judge jackson: absolutely, senator. as a law school student, i was trying to do what law school students do, which is analyze a new set of legal provisions. please laws were new, and i was trying to assess what criteria courts could use to look at them. i was not making an argument about them at all. judge jackson: exactly. one of those statutes was in connecticut. it was challenged on constitutional ground, double jeopardy. it went to the united states supreme court. i defended it there. it was upheld 9-0. i don't know whether your
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article was cited, but i would put this log review article very much in the category of analysis, the distinction between prevention and punishment. and i would call it protection, not punishment or prevention. that's the argument i made to the supreme court. i ask that this article would be put in the record. >> without objection. sen. blumenthal: by the way, it took me two or three times to get through it. judge jackson: [laughter] sen. blumenthal: no disrespect to you or the harvard log review. the issue of child pornography, you mentioned, i think, that in your decisions on the sentencing cases involving child sexual abuse, which, by the way, i agree is absolutely horrific,
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abhorrent, it's the reason senator graham and i have sponsored a measure that addresses it, but you said that you impose the sentence that matched the recommendation by either the prosecution or the probation office in most of the cases where you did that sentencing. is that right? do i have that right? judge jackson: yes, senator. looking back at the records concerning my cases, it looks as though i had 14 cases that involved either child pornography, internet -- interstate travel to meet up with the child for sex, sex crimes related to children. in 10 of those 14 cases i
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imposed a sentence that was consistent with or greater than a what either the government or the prosecution requested. sen. blumenthal: with probation. judge jackson: excuse me, the government or probation office. sen. blumenthal: let me just ask you, the probation office is an independent arm of the court that investigates the defendant, looks at the crime, the defendants background, his family situation, all of the relevant factors involved in sentencing, including the sentencing guidelines. and then, independently and impartially makes a recommendation, presumably to serve the interest of justice in that particular case based on the individual facts, is that roughly a correct description? judge jackson: that is correct, senator. the probation office works
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within the court systems. they are independent of the parties and they investigate and make recommendations in cases concerning what the probation office thinks is an appropriate sentence. sen. blumenthal: let me just finish by saying. much of america is watching these proceedings on a split screen. i on one hand they are literally seeing the death and destruction in ukraine. russia's brutal, barbaric assault on individual rights, basic freedoms that we often take for granted here. annual we are exercising those rights right here. you are a teaching lesson. this proceeding is a teaching lesson about the importance of democracy. the people of ukraine are fighting for it.
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they are dying in their neighborhoods and streets in their homes. they are huddled in basements. there are men and women that are resisting, valiantly and braving against a huge military force that russia has unleashed, and a reign of terror for -- from the sky. simply because they believe in the ideal of freedom and law that we are seeking to preserve here. on this side of that split screen, i think that it's important that we do our best to honor the norms and the rules that you've sought to uphold throughout your life, and i'm proud and excited to be here with you and your family as we go through this process. i look forward, as i hope many
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of us do, to a bipartisan majority of support of your candidacy. thank you. thank you, mr. chairman. >> thank you, senator blumenthal. we have several considerations, remaining senators for questions. the endurance of our witness, judge jackson, votes on the floor request for compassionate release by a number of people in the audience. here is where we stand. we will have senator hawley. then we will take a 20 minute break, because that's when we think there will be some votes on the floor. we can take care of those and get back in 20 minutes. we will return to that break to senators booker, then we will take a 30 minute break or so for dinner. then it will be senator kennedy and tennis. and then we will start off tomorrow with two senators all off in blackburn.
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so we should finish in the 10:00 hour this evening, god willing. at this point, i recognize senator hawley. sen. hawley: thank you, mr. chairman. judge, nice to see you again. congratulations on your nomination. i want to start where senator blumenthal left off. i want to talk to you about these cases that i mentioned yesterday. you know which ones i want to talk about. the seven cases, child pornography cases in which you had discretion that came before you. you had discretion to sentence one way or another in the seven cases. not every case you have discretion, sometimes all requires you to impose a certain sentence. but you had discretion on each of these seven and you chose to depart from the federal guidelines, and also from the prosecutor's recommendation. senator lee ask you about this. senator cruz ask you about it. he had the chart with the seven cases. before we jump into those, i want to correct the record on one or two things. senator coons suggested that in
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one or three cases you impose sentences within the guidelines are at the same level the prosecution, but in nickerson you do not have discretion. the law abounds you. in the others weren't a child pornography case. another thing to clarify, as for the comments about the probation office, the probation office doesn't issue national guidelines, they don't issue sentencing guidelines, they are public or recommended to all judges. the probation office provides vice to judges case-by-case, usually in private. usually not available to public. is that right? judge jackson: not exactly, senator. the probation office in criminal cases is a signed -- is assigned by the court to work with respect to the evaluation of cases, in every case consistent with congress' requirements, the
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probation office prepares a presentence report in which they review all of the statutory factors concerning sentencing. congress has a statute for sentencing. it requires judges to consider the nature and circumstances of the offense, the history and characteristics of the defendant, the need for the sentence imposed to promote various purposes of punishment. there are many purposes listed in the statute. and the probation office is the arm of the court that does factual investigations in every criminal case, unless there are certain cases in which you can waive it, but the background is the probation offices assessment of the facts related to a particular sentence and a
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particular crime. the probation office reports. when a court sentences, it becomes the finding the fact of the core. so the probation office appears just like the prosecution and the defense, the probation office as written a report and they make a recommendation to the court based on their independent analysis related to the facts of a particular crime and defendant in sentence. sen. hawley: understood, so they give the court council. understood. however, they don't issue guidelines. they are not uniform. it is a case-by-case and corey, as you said. the report goes to the judge. as i understand it, the presentencing report -- i'm sorry, the probation reports are not public. i would love to see them if they are. but it's not as if there is one set of guidelines with federal
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sentencing guidelines and probation guidelines. the probation office is giving advice to the judge and it varies case-by-case. judge jackson: senator, sorry, i thought you were done. sen. hawley: let me ask you about a specific case. i listen to the seven cases in which you had discretion and did not follow the prosecutor's recommendation or the sentencing guidelines. let's talk about one of them because we talked about some of them as a group. let's talk about united states versus hawkins from 2013, the defendant was wesley hawkins, he was 18 years old at the time, he uploaded five video files of child pornography from his computer to youtube, this is how the police got onto him. he uploaded another 36 depictions of child part in lewd photos to his icloud account. when the police executed a search on his apartment on the premises, they found 17 videos on his laptop and 16 images of child pornography, all of them
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very graphic, some of them involving very young children. 17 videos in particular, this is the government sentencing memorandum. here are some of the videos that the government charged and they recovered. there was a 24 minute six second video depicting a 12-year-old male committing a sexual act. i'm not gonna read exactly what it was. there is a one minute 57 second minute video depicting an eight-year-old committing a sexual act. there was an 11 minute 42nd video depicting an 11-year-old committing a sexual act and being raped by an adult male. there was a 15 minute 19 second video depicting to 11-year-olds committing sexual acts. there was a seven minute 51 second video depicting a 12-year-old committing a sexual
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act. so, as the government said in this case, and i'm quoting from the transcript of the sentencing hearing, 17 minutes is a lot. -- 17 videos is a lot. some of them could be an offense and they are very lengthy and include numerous images, numerous views, sometimes collages, sometimes multiple victims, you see the act in progress. the government goes on to describe some of these as masochistic images. this is a tough case. this is one of the tough cases you are referencing earlier. these cases are terrible, this is one of them. it's terrible stuff. it's not a good guy doing the stuff. guidelines recommendation was 97 to 127 months. if i'm doing my math right, that's up to 10 years. in this case, the guidelines recommendation was essentially written by congress because, in the protect act of 2003, congress specified what they
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wanted the range to be in these kind of cases, and congress specified that they wanted the mandatory minimum. i know you remember the protect act because you talked about it. you have given lectures on it, and it was active in 2003. 84-0 was the vote in the senate. the reason the protect act was put into place, the senate was concerned over lenient sentences to judges and child poor and cases, which is what you described. he said there was an increasing perception on capitol hill within doj that liberal judges were to blame for the downward pressure on federal sentences in the legislation wasn't necessary to rein them in. that's you in 2011 describing this law. congress has set the guidelines here, 84-zero in the senate. the chairman voted for it, as did a number of other members from the committee. congress sets the range. essentially it's 97 months up to 10 years. the prosecutor in this case, this was an d.c., you are on the federal court.
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the prosecutor says a liberal administration, and the state of texas, my colleague from texas is here, the prosecutor in this case still asked for two full years in prison. you gave the defendant three months. guidelines called for 10 years, prosecutor wanted at least two, you gave them three months. when you did, you made a number of arguments, the statements in the record and i would like to go through them. i read them all. the first statement you made was the federal guidelines, the ones that congress wrote, "are in many ways, outdated." that's your quote. you went on to say about why you thought they were out doted. "i don't feel it's appropriate to increase the penalty on the basis of a number of images or prepubescent victims as the guidelines require because these circumstances exist in many cases, if not, most, and don't
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signal an especially heinous or agree just child pornography offense." i just want to ask you about that because i'm having a hard time wrapping my head around it. we are talking about eight-year-olds, nine-year-olds, 11-year-olds and 12-year-olds. the government said his images added up to over 700 images. gobs of video footage of these children that you say does not signal a heinous or egregious child pornography offense. help me understand that. what word would you use if it's not heinous or agree just? how would -- egregious? how would you describe it? judge jackson: thank you, senator for letting me address the concern that you've put forward based on the record that you've reviewed. as a judge who is a mom and has
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been tasked with responsibility of actually reviewing the evidence, the evidence that you would not describe in polite company, the evidence that you are pointing to discussing, addressing in this context as evidence that i have seen in my role as a judge, and it is heinous, it it is egregious. buttigieg has to do is determine how to sentence defendants proportionately consistent with the elements that the statutes include, with the requirements that congress has set forward.
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unwarranted sentencing disparities is something that the sentencing commission has been focused on for a long time in regard to child pornography offenses. all of the offenses are horrible. all of the offenses are egregious, but the guidelines, as you pointed out, are being departed from even, with respect to the governments recommendation, the government in this case, and another has asked for a sentence that is substantially less than the guidelines penalty. so what i was discussing was that phenomenon. that the guidelines in this area are not doing the work of differentiating defendants, as the government itself indicated in this very case.
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so, that's what i was talking about, but i want to assure you, senator, that i take these cases very seriously. that these cases include the notions by many defendants that the folks at issue, the defendants themselves are collecting these images on the internet, they are terrible things that have happened, but they are not involved, say the defendants, they are not focused on what is actually happening to the children. so part of my sentencings was about redirecting the defendants attention. it's not just about how much time a person spends in prison, it's about understanding the harm of this behavior, it's about all of the other kinds of
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restraints that sex offenders are ordered, rightly, to live under at the end of the day. sentences in these cases include not only prison time, but restraints on computer use, sometimes for decades. restraints on ability to goni our children, sometimes for decades. all of these things judges consider in order to affect what congress has required. which is a sentence that is sufficient, but not greater than necessary to promote the purposes of punishment. sen. hawley: let me ask you about this last point because you said it a couple of times. the sentences that congress requires. congress wanted the guidelines to be mandatory. congress wrote the guidelines. they wanted them to be mandatory. they gave the courts factors to consider to choose between the sentencing range. congress want you to choose between 97 at 121 months.
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that's what congress wanted. the supreme court in booker said that the sentencing guidelines would be discretionary, the stash so the supreme court gave a discretion. if we talk about what congress wanted, congress wanted them to be mandatory. my only point in raising that is that you had discretion in these cases and use discretion to choose sentences that you did. let me ask you about some of the things you said. you said it this morning and i appreciated you wanted to get the defendants to own up to what they have done. i thought that was powerful and i thought it was right. but let me ask you about what you said to this defendant. you said to this defendant, to whom you sentenced only three months in prison, that your collection -- i'm quoting you, "your collection at the time you are caught is not as large as it seems. the governme -- seems." the government responded and said the number of images can be
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appropriate and that the defendant has amassed an extremely large collection of child pornography. but you disregarded that. you also told the defendant, this seems to be a case where you are fascinated by sexual images involving what were essentially your peers. then you went on to say, the defendant was trying to satisfy his curiosity. curiosity is your word. one more thing on this, same idea, you said this is you to the defendant, you were viewing sex acts of children who were not much younger than you, and the whole discussion is about why you are only giving him three months. judge, he was 18. these kids are a. i don't see and what sense they are peers. i have a nine-year-old, seven-year-old and a 16 month old at home and i live in fear that they will be exposed to, let alone, exploited in this kind of material. i don't understand you saying to
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him that they are peers, and that therefore, you were viewing sex acts between children were not much younger than you, and that that is somehow a reason to only give him three months. help me understand this. judge jackson: senator, i don't have the record of that entire case in front of me. what i recall, in respect to that case, is that unlike the many other child pornography offenders that i have seen as a judge and that i was aware of in my work on the sentencing commission, this particular defendant had just graduated from high school and some of, perhaps not all, when you were looking at the records, but some of the materials he was looking at were older teenagers, were older victims. and the point, senator, is that,
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you said before the probation office is making recommendations and they do so on a case-by-case basis, that is what congress requires. this is not done at the level of -- sen. hawley: you are at discretion judge. judge jackson: that is it discretionary act of a judge but it's not a numbers game, i understand that congress wanted the guidelines to be mandatory, the supreme court, in 2005 determined that they couldn't be an opinion by justice scalia determined that they can it be, and congress since then has not come back to amend them or to change them or to make them mandatory again. so there is discretion at sentencing. when you look at the sentencing statutes, congress has given the judges, not only the discretion
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to make the decision, but require judges to do so on an individualized basis, taking into account, not only the guidelines, but also various factors, including the age of the defendant, the circumstances of the defendant, the terrible nature of the crime, the harm to the victims, all of these factors are taken into account in the probation office assists the courts in determining what sentence is sufficient, but not greater than necessary. and i appreciate, senator, that you have looked at these from the standpoint of statistics, that you are questioning whether or not i take them seriously or i have some reason to handle them in either a different way than my peers or a different way than other cases.
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i assure you that i do not. that, if you were to look at the greater body of not only my more than 100 sentences, but also the sentences of other judges in my district and nationwide you would see a very similar exercise of attempting to do what it is that judges do. attempting to take into account all of the relevant factors and do justice individually in each case. sen. hawley: let's keep talking about this case. you also said to this individual , who is an adult, tried as an adult, 18 years old, you also said to him besides saying that you felt his victims were his peers, you said there's no reason to think that you are a pedophile, and then you went on to say, that's another reason why you weren't going to give him -- you are only going to give him three months because
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you judged he was in a pedophile. and then you said, and this is something i really need your help understanding, then you apologized to him. i have to tell you, i can't quite figure this out. you said to him, this is a truly difficult situation. i appreciate that your family is in the audience. i feel so sorry for them and for you and for the anguish this has caused all of you. i feel terrible about the collateral consequences of this conviction. and then you go on and say sex offenders are truly shunned in our society. i'm just trying to figure out, judge, is he the victim here or are the victims the victims? you are apologizing to him, you are saying you are sorry for the anguish this is caused him. there was a victim impact statement in this case, it did not get read into the record, but it was there. i described the videos that we have.
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you say earlier in the case you talk about how heinous these crimes are and you describe them and how heinous it is, to your credit, and yet, here you are giving him three months and apologizing to him and saying you feel sorry for the anguish it has caused him, and also saying you think that sex offenders are truly shunned in our society. just talk about that, help me understand. is he a victim, is that your view? is that why you said that, is that what you meant? judge jackson: senator, i again don't have the entire record. i remember in that particular case i considered it to be unusual, in part for the reasons that i described. i remember in that case that defense counsel was arguing for probation. in part because he argued that here we had a very young man, just graduated from high school, he presented all of his diplomas
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and certificates and the things that he had done and argued, consistent with the what i was seeing in the record, that this particular defendant had gotten into this in a way that was, i thought, inconsistent with some of the other cases i had seen. part of what a judge is doing, as required by congress, is thinking about this case, thinking about unwarranted sentencing disparity that's in the statute. other cases, other determinations that a judge may have made about this. i don't remember in detail this particular case, but i do recall it being unusual. so, my only point to you is that judges are doing the work of
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assessing, and each case, a number of factors that are set forward by congress. all against the backdrop of heinous criminal behavior. but the guidelines are no longer mandatory, congress has not corrected, as you would say, the supreme court's determination about that. justice scalia's decision that the guidelines are not mandatory, congress has not said that. and congress has given judges factors to consider. this, in my view, was an unusual case that had a number of factors that the defendant was quarantining out -- pointing out, that the government was pointing out, that the probation office was pointing out, and i sentenced this 18 year old to three months in federal prison under circumstances that were
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presented in this case because i wanted him to understand that what he had done was harmful, that what he had done was unlawful, that what he had done violated the law and needed to be punished. not only by prison, but also by all of the other things that the law requires of a judge who is sentencing in this area. sen. hawley: but judge, with all due respect, and i will tell you i am questioning your discretion and judgment. that's exactly what i'm doing. i'm not questioning you as a person, i'm not questioning your excellence as a judge, but you said you had discretion and that's what i'm doing. i'm questioning how you used your discretion in these cases. to me, to take a guy who's 18 years old, who has with the government says is an extremely large collection of prepubescent pornography, eight-year-olds,
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10-year-olds, 11-year-olds, we are talking about gobs of hours of time that he has, and you say to him, what, you say, well, it was just a collection. he was just viewing it, and essentially, they were his peers. you say to him that he is not a pedophile. i don't know how you know that, i don't know why that's relevant to the guidelines. maybe it is. you say he's not a pedophile. you say you are very sorry for him and what he suffered, then you give him three months when, frankly, a liberal prosecutor is asking for two full years. it does seem like an extraordinary case. it would bother me no matter what. it bothers me when and every child poor case you've had you've sentence below the guidelines and below the government's recommendation. saying that sex offenders are truly shunned in our society, as you said to him, it echoes what you said as early as law school and that harvard law review
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article senator blumenthal was talking about. there you say, and i'm quoting you. in the current climate of fear, hatred and revenge, associated with the release of convicted sex criminals, courts must be especially attentive to legislative enact vents regarding these sex criminals. i guess like this enactment here, the protect act that congress enacted. i want to try to understand, is it your view that society is too hard on sex offenders? you say they truly are shunned in society. you wrote that many of these laws are product of a climate of fear, hatred and revenge. so is that still your view? do you think that these laws are too tough, that we are too tough on sex offenders? explain what you meant in this case, in 2013, and it seems to be the same thing you said many years ago. judge jackson: senator, it's not the same thing i said many years ago.
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many years ago, as a law school student i was evaluating a new set of legislation, state laws about legislation, and i was analyzing them as law students do. it wasn't about the sex crime, it was about the characterization of the law. is it a punitive law, is it a prescriptive law, and how would a court go about determining that? that was the frame that i used them, it could have been about anything. it was about the characterization of legislation. sen. hawley: judge, i'm sorry, i don't mean to interrupt you, i only have two half minutes left. i want to make sure i understand this. i'm quoting from your conclusion. this is on page 1728 of the harvard wall review. this is your conclusion. in the current climate of fear, hatred and revenge associated
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with the release of convicted sex criminals, courts need to be especially attentive to legislative's enactments. you are saying that there is a climate of fear, hatred and revenge that are informing these laws. describe the laws earlier. megan's law and senator cruz asked you about those. i'm trying to understand what you met because you are saying something similar in the hawkins case. you are saying society truly shuns our sex offenders. judge jackson: with all due respect, my article is now on the record, people can read it and they can see that i was evaluating these laws not to determine their constitutionality, not to say that they should not be enacted, but to talk about the ways in which courts make determination about the character of the law and all the consequences that follow from them. in law school, i had not had any experience in terms of the
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criminal justice system, and i was doing what law students do, which is, seeking to analyze in a creative way, new legislation. with respect to myth or hawkins, i was doing what judges do. which is, look at the statute, 18 usc 3553-a, exercise discretion as congress has required us to do. take into account all of the various aspects of a particular case and make a determination consistent with my authority, my judgments, and understanding fully, the agree just nature of the crime. as you said, even the prosecutors in these cases are not recommending guideline
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sentences. the probation office, which is an independent authority, looking at these cases, and the facts related to them are not recommending guideline sentences. this is a particular area where the commission has seen an enormous amount of disparity, and has asked congress to come back and address, to help judges who are looking at these cases, to be able to rely on the byline. sen. hawley: which congress has declined to do. judge jackson: senator, in that case we have the statute that congress has enacted, concerning penalties, and we have judges who are doing their level best to make sure that people are held accountable, as they need to be in our society, in a fair and just way. sen. hawley: mr. chairman, my
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time has expired. thank you, judge. i have no further questions at this time. >> just checking with my staff. the original statute was passed in 2003, the scalia decision, 2005, the booker decision. judge jackson: the original statute that i'm talking about, i'm just thinking, i felt like it was in the 1980's. in 2003. justice scalia, the booker decision made the guidelines advisory. so that even though judges had to calculate them, they are no longer binding, and what it meant in the statute is that the guidelines became one factor amongst many that judges consider at sentencing. >> i'm not going to pine on justice scalia in his conduct
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and decision as it relates to the overall topic. i hope we all agree that we want to do everything in our power, reasonably within our power to lessen the incidence of pornography and weigh tatian of choi jin. you have made that clear that's your position. but i just want to tell you, congress doesn't have clean hands in this conversation. we haven't touch this now for 15, 16, 17 years. and you are the only one who faced this kind of a challenge with cases before you. i said this morning and it bears repeating. in the united states versus klotz, trump appointed judge sarah pitlick, senator hawley's choice for the eastern district of missouri, sentenced an individual convicted of child pornography to only 16 months, well below the 135 to 168 month sentence requested by the guidelines. i will finish and of course i will recognize you.
Check
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senator hawley, you've said some very powerful things in support of this judge. but clearly she faced a situation where she decided she would not follow the guidelines and took a sentence of less than half of what they recommended. we have created the situation because of our inattention and unwillingness to tackle an extremely controversial area and congress and left it to the judges. and i think we have to accept some responsibility for that, senator. sen. hawley: i just wanted to say, since you've mentioned the judge in that case, she followed the prosecutor's recommendation in that case. as i said over and over, part of my concern with judge jackson is that she has not follow the prosecutor sentences. she didn't in the case we were talking about or in the guidelines, and we can have a policy debate over whether or not the policies are too lenient. i would argue in this era they are not too lenient. you were right the first time when you voted in 2003.
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>> i will say that i don't know if you sponsored a bill to change this, i will be looking for it. but i will tell you there is in a long line of people waiting to cosponsor this controversial issue. if we are going to tackle it, we should, but we should concede that we left chart -- we left judges in this situation. there is no clarity in this situation, and i think told this judge responsible for the overall situation is to ignore our malfeasance, whatever it might be, lack of responsibility in dealing with this. sen. hirono: thank you, mr. chairman. judge jackson, as you may know, i asked the following two preliminary questions of every nominee who appears before any of the committees. i will give these two questions first. since you became a legal adult, have you ever made unwanted requests for sexual favor or committed any verbal or physical harassment or assault of a sexual nature? judge jackson: i have not.
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sen. hirono: have you ever face discipline or entered into a settlement related to this conduct? judge jackson: i have not. sen. hirono: judge jackson, my colleague from missouri seems to think that it's appropriate for federal judges to sentence individuals below inappropriate, to sentence individuals below the sentencing guidelines in these kind of cases, horrific cases. i think it's important to offer a couple of clarifications for the record. judge jackson, when the u.s. sentencing commission first address the issue of sentencing in this area in 2012, do you remember that only 40% of convicted offenders in this category or receiving sentences within the guidelines? judge jackson: senator, i don't remember exactly the number, but i do know that there was a great deal of variance around the guidelines. sen. hirono: 40%.
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would you be surprised to learn that the department of justice, which prosecutes these cases, sent a letter to the u.s. sentencing commission in 2013, stating that the existing sentencing guidelines for child pornography offenses do not accurately reflect the current landscape of child pornography offense conduct? judge jackson: i don't remember that particular letter, but there was a lot of concern about this guideline from all sides. sen. hirono: now the sentencing commission issued another report just last year on this topic. do you know that as of that report, and even lower -- an even lower percentage were receiving sentences within the guidelines? judge jackson: i did not know, but i'm not surprised. sen. hirono: did you know that
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as of last year, it was just 30% of nonproduction offenders who were sentenced within the guidelines? judge jackson: i did not know, but i am not surprised. sen. hirono: my republican colleagues's made a big show of promising a fair process. and to me, that means ensuring that you are treated no differently than any other federal judges that -- judges nominees that have come before us. there was an article recently that highlighted the fact that many of president trump's circuit court nominees who were previously district court judges had also issued below guideline sentencing to child pornography cases. judge ralph erickson, who was confirmed to the eighth circuit in 2017 with support from every republican member of this committee, who was serving in the senate at the time, and there are at least 11 cases
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where he sentenced people below guideline sentences. does that surprise you? judge jackson: it does not, senator. sen. hirono: i'm not sure if you know judge erickson, but do you have any reason to believe he is a soft on child or not a fee based on the sentences? judge jackson: i don't have any reason to believe that. sen. hirono: do you think my republican colleagues are soft on child pornography just because they voted for judge erickson to become a federal appellate judge, even after he issued these 11 sentences? judge jackson: senator, i'm not in a position to evaluate whether your colleagues are soft on crime because of their votes. i have no reason to believe that. sen. hirono: they voted for this person, but i think it would be quite unfair to characterize him as being soft on child
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pornography. i would like to talk to about judge joseph bianco, who was confirmed to the second circuit and 2019 support from every republican member of this committee and was serving in the senate at the time, including senator hawley, in that case united states versus bowen. the judge sentenced him to 60 months in prison when his guidelines range was 151 to 188 months. and here is what the judge said in the sentencing transcript for that case. ", and the guidelines here, wait disproportion's under the facts of this case, and i don't view them as particularly helpful in this case. i believe the probation department got it right in terms of the statutory mandatory minimum being sufficient, but not greater than necessary to achieve the factors of sentencing." i'm not sure if you know judge
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beyond go, but do you have any reason to believe that he is soft on child pornography based on that sentence or those comments? judge jackson: i do not, senator. sen. hirono: do you think my republican colleagues are soft on child pornography because they voted to confirm judge beyond go to the second circuit, even after he issued below guideline sentences and made these comments? judge jackson: i have no reason to believe that. sen. hirono: here are some of the other circuit judges that all of my colleagues voted to confirm, despite the fact that they sentence child pornography defendants to below guideline sentences. the judge on the sixth circuit. judge richard sullivan on the second circuit. judge andrew on the 11th circuit. again, i'm not sure if you have ever met these judges before,
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but do you have any belize -- reason to believe they don't take child pornography seriously? judge jackson: i do not. sen. hirono: i would like to note that senator cruz referred to a chart that listed eight cases and the government recommendations in the sentencing guidelines and that you did not adhere to those sentencing guidelines. what was not included in the chart was what the probation recommendations were. and if you add those probation recommendations, and five of the cases you followed the probation recommendations. in one instance you are lower and one instance you are higher than the probation recommendations. wister chairman, i would like to introduce the complete chart for the record. >> without objection. sen. hirono: you have been asked to answer a lot of questions about your judicial philosophy.
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while my colleagues on the other side seem dead -- dead set on finding out if you are an originalist, textual list, if you believe in a living constitution or various other labels, i don't find these labels particularly useful. take originalism. proponents claim you just have to dig deeply enough into the historical record and you will somehow find the one true meaning of a constitutional provision. the fallacy of this approach is illustrated in district of columbia versus hiller. there, justice scalia's majority opinion in justice stevenson's dissenting opinion each applied originalism. justice stevens, more effectively, in my opinion, and reach completely different opinions about the scope of the second amendment. take textualism. judge gorsuch applied textualism to find that title vii of the
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civil rights act protected employees from discrimination based on sexual orientation and gender identity. in dissent, justice alito mocked justice scorches -- gorgeous application and wrote the following. "the court attempts to pass off its decision as the inevitable product of statutory interpretation championed by our late colleague justice scalia. but no one should be fooled, the courts opinion is like a pirate ship. its sales under a textual is flagged, what would it actually represents is a theory of statutory interpretation that justice scalia excoriated. the theory that courts should update those statutes so they better reflect the current values of society. and these are two justices who are usually in agreement.
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so much for labels. instead of trying to fix a label on you, i'd rather focus on the fact that you are fair and objective in your approach. that you are evenhanded in your application of law to the facts, and the you are independent. during your last confirmation hearing you spoke about judicial independence. about what you learned during the three clerkships in your then eight years on the bench. you said, and i quote, i know very well what my obligations are, what my duties are. not to rule with partisan advantage in mind. not to tailor craft my decisions in order to gain, influence, or anything of the sort,". well said. my question is the following. what do you do to ensure you maintain independence free of partisanship when you handle a case? judge jackson: thank you,
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senator. what i do and what i've done and all of my 570 some odd opinions is to apply a methodology that is designed to ensure my impartiality and to respect the limits of my judicial role. what it means is that i'm receiving the cases, and at the outset, i'm setting aside any personal views that i might have about the parties, about the issues, as i also set a my d.c. circuit judge for me and, it doesn't matter there -- matter to me whether the argument is being made by the president of the united states or a death row inmate. what i'm doing is looking at the arguments, i'm looking at the
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facts, i am applying the law and as neutral and consistent in manner as i can because that is the duty and requirement of the judicial oath. i am also very conscious of the limits of judicial authority, of the restrictions that exist within the law to prevent me, as a judge, from becoming a policymaker. this means that i carefully scrutinize my jurisdiction. it means that i look at the text and focus on the text and the intentions of the legislators that drafted that provision, or the intentions of the principal. it means i am looking at precedent.
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if i was fortunate enough to be confirmed to the supreme court, i would be upholding the principles as i consider the precedent and making sure that the court is putting forward consistent and predictable rulings as it is important to maintain the rule of law. all of these ics constraints on judicial authority that i care deeply about. in order to maintain my independence as is necessary to ensure public confidence. judge jackson, i sat on this committee for a number of years. as some of my colleagues try to pin labels on the nominees that come before us, i find your methodology to be a lead judge
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to come up with fair and objective results. i thank you for that, we are generally bound. it will not be the case if you are confirmed to the supreme court. the supreme court can overturn its own presidents. that is why i found your knowledge instructive. in that case, you had a president. it already confronted the issues you faced. however, it was another district court and you are not bound by it. you nonetheless found -- followed through on that precedent. why did you find that so persuasive? >> in the law, there are
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different kinds of precedents and by that i mean there is a vertical president which is what people are most familiar with. there are cases handed down by higher courts, the appellate court, the supreme court. that binds the lower courts so even if you disagree with them, you have to follow them because they are binding precedent but there is also horizontal precedent. it is about maintaining consistency and predictability in the rule of law. that means that when you are in a district, there are many judges. if someone else in your district has handled the case that comes out or involves the same issue, you as the second judge have to contend with that ruling. you can't ignore the fact that
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there is precedent in your district that handles a case in a particular way. with respect to the mcgann case, the president was not just close, it was nearly identical. the myers case involved the former white house counsel and the argument by the executive that the former white house counsel had absolute immunity with respect to a request by the legislature that she provide testimony. my case involved a former white house counsel who was claiming absolute immunity in response to a legislative subpoena. in both cases, not only was the absolute immunity issue on the table but in both cases, the same threshold issues about whether or not there was
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jurisdiction in the court because the legislature had standing or did not have standing. that was the argument being made. the same question about whether the court could hear a dispute between the legislature and the executive branch, all of those issues had previously been considered by my colleague in the district court. he wrote an extensive opinion analyzing each of the issues and so at a minimum, as the second judge dealing with these exact same issues, i had to look at what he did and decide. was it persuasive, did i agree russian mark i did. -- did i agree? and i did. >> if there was a vertical president from the supreme court , you would have had to follow
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that president but there was not. you followed that reasoning by another district judge, that made a lot of sense to me and that certainly makes sense to me. you discussed the importance of precedent in your opinion. this is what you wrote. they are performing a limited function that reflects the foundational principle that undergoes the federal government constitutional system. this was because of deciding a legal issue, every time the same question was presented. this establishes the domain of saying what the law is and into the realm of legislating what the law should be. i know you have been asked questions about the importance of precedent before but maybe you can tell us why precedent is
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important in our judicial system. >> thank you. our judicial system is one that is designed to uphold the rule of law. unlike other systems in other societies, some other societies, we believe that we have a government of laws and not men. yet, there are men and women who are acting as judges in the context of our system. what precedent does is ensure that there is consistency across the different individuals who are tasked with the solemn responsibility of interpreting the law. it ensures that there is public confidence that the law is what is guiding judges in their decision-making and not just their own individual views. it is crucial for maintaining
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public confidence, maintaining stability in the law, establishing a system that has predictability and it. all of which supports confidence in the judiciary which is the currency of the judicial branch. because of the importance of precedents and promoting confidence, people need to know what the law is. precedent is important on this on that score. if you are confirmed to the supreme court, what chapters would you consider before overturning precedent? >> there are many factors that the supreme court considers and not just whether they think a prior precedent is wrong. that is one of the factors. the court has said that a precedent that is egregiously wrong is one that is subject to reconsideration.
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but in order to actually make a determination about overturning it, in addition to it being wrong, the court considers whether or not there has been reliance on that precedent and if so, how much. the court considers whether or not the president is workable. sometimes the court will issue a ruling and it turns out it is not actually functioning in the way that the court intended. the court considers whether or not other precedents in the area have shifted such that the foundation for the particular precedent is no longer sustainable. and the court considers whether or not there are changes in the facts that relate to that president or a new understanding about -- a new understanding
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that relate to a precedent. all of those factors are things the supreme court takes into account. when it decides whether or not to revisit a precedent. the court should consider all of those factors. before overturning precedent. if you have five members of the court decided to overturn a precedent, they can do so. under our scheme, yes. we are seeing more and more president being asked to overturn and an analysis by national affairs found that since 2017 went justice gorsuch was applied, the court has shown an increase in readiness to overturn resident.
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this is true for long-standing precedents. the court overturned a precedent -- that is a decision that they first signaled they wanted to -- wanted -- this is called signaling. justice alito signaled his desire to revisit that decision. these troops got the message. although they came close in 2016, justice scalia's death
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came from the california teacher association. the minute that justice gorsuch was confirmed, the court finally had a conservative majority to overturn this. i followed these lines very closely. that is what happened. they waited for justice gorsuch. in another example, the courts acknowledged these justices dissented in overturning a precedent banning burdensome and unnecessary restrictions based on abortion providers. this precedent was only four years old. now the court is poised to overturn roe v. wade even though women have relied on their constitutional right to have an abortion for nearly 50 years.
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of course i am not suggesting supreme court decisions are sacrosanct. i am thankful the court did revisit precedents like plessy v ferguson. but justices should not be seen to be advancing their individual , political or ideological agenda. one result of the new approach is people's view of the court is changing for the worse. a recent poll found that 42% of americans approve -- disapprove of the supreme court. this is up 15 points from august of 2020. shortly before the late justice ruth bader ginsburg died and amy barrett was appointed to fill her seat. there is an ideological split in
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this current supreme court. this is not based on the facts or the law. i think it leads to the american people questioning whether the court is a fair and objective arbiter of cases and controversy. you are asked earlier today about your guantanamo detainees. as a federal public defender, you are assigned to represent guantanamo detainees. >> that is correct. >> you also did pro bono work for guantanamo detainees where you were assigned to do that work as well. there was one detainee that i
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had represent it as a public defender who was brought into my firm's practice unbeknownst to me. when i arrived at the firm, the attorneys who were working on that case recognized i had previously been a lawyer who represented this particular detainee. >> i think you have clarified that. this is related to detention. and i think that was brought up. were you working on behalf of detainees at that point? we working on behalf of other groups and individuals? >> i was working on behalf of other groups and individuals.
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cracks yes. there were three briefs in total. two different cases. one of the briefs i filed was on behalf of of 20 retired federal judges including one who was a partner at my firm at the time and who wanted to make a particular argument to the court concerning the detention process. >> these were judges nominated by various presidents. it must have been a diverse group. they must have asked if you brief. cracks they did. >> as part of your work at the law firm, a response ability of your employment, you were assigned to the present this. cracks the other two briefs that i filed were at the cert stage
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and merit stage. my clients in those cases were a diverse group of organizations including the cato institute and the constitution project. members of this committee know full well that we have to follow the code of professional conduct. that means we have to represent our clients. that is what you are doing with regard to the detainees. some of the very senators who were openly questioning you. judicial nominees should not be opposed for the arguments they made in the course of representing clients. i have been a military lawyer for almost 30 years. i represented people as a defense attorney in the military that were charged with some
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pretty horrific things. the system of justice we are so proud of in america requires the unpopular to have an adequate and advocate. every time a defense lawyer fights to make the government do their job, that defense lawyer has made us all safer. would you agree with that? >> i do, senator. >> conservative lawyers filed this -- the letter said the american tradition is at least as old as john adams's representation of british soldiers charged in the boston massacre. the defense counsel is key to ensuring that military commissions and federal judges have access to the best arguments and most rigorous
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factual visitation. the quote -- your work as a public defender, i don't know if it disqualifies you or makes you lean one way or the other. you made it very clear that that is not what you are about. i just had one more question for the remaining time. i was on such a role. christ you are honorable and we were on a roll. >> if i could ask one question of the chairman. the senator made reference to the recommendation of the probation office. to the best of my knowledge,
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those probation recommendations are not in the record. i have not seen them. that raises two questions. whether the white house is providing different nominees to democratic members and republican members. i don't know where the senator would get access to them other than from the white house but secondly, regardless of whether it is differential, with chairman a great that there is considerable folk -- considerable focus on this? jackson has said that she was following the factors in those cases. christ i am sorry to interrupt you but i want to make an announcement. we will have a 10 minute break.
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>> you will keep differential access to this information. >> i will look it up. we will take 10 or 15 minutes to relax and then we will come back and we have two senators who will be recognized and then take a break for dinner and then we will try to finish tonight with two remaining senators. senator allsop and senator tillis who will be first thing in the morning. we stand in recess.
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>> the senate judiciary committee is taking a break in the confirmation of judge ketanji brown jackson. she is born in washington dc, graduated from harvard law. she clerked for the justice she could be replacing. a break here with a few more senators we expect to hear from this evening. and then the last two of the committee may have to hold their questions until tomorrow's session. while they are in a break, we will look at some of the questioning from earlier. >> you were viewed as a judge and you talked about this yesterday. this believes you should spell things out and leaves in being
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transparent. is that a fair characterization? >> i am sure that your clerks know that. i want to talk to you about something that is the opposite. this is something that some have termed the shadow docket. that includes decisions that may come on an expedited basis. this may be issued without oral argument or a full briefing. we have seen the court increasingly deciding cases in this way, often over the descent of nearly three or four of the justices. the court granted 20 request for emergency relief. a historically high number. 10 years ago in the october term of 2011, the court granted only six requests in an entire year. when do you think it is appropriate for the supreme court to grant emergency relief uses? what are the circumstances that
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warrant this? i think you know these decisions have a profound effect on people's lives. i will use this example last fall. the court refused to stop the enforcement of a texas law that severely restricts a woman's access to abortion. this called the statutory screen not -- ski not only unusual but unprecedented. could you talk in general about when you think this shadow docket should be used? also, if it is overused, could it undermine public confidence in the court? >> there is a balance that the court has to consider insofar as on the one hand, it has always
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had an emergency docket, the need for >> ability, the need to get answers to the parties at issue. this allows other courts to rule on things from before they come to the court. i am not privy at the moment to the justices used and why and how they are using the emergency docket in these cases. if i was fortunate enough to be confirmed, i would look at those issues. it is an interesting and
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important set of issues. >> i think just another example of this is the day before wisconsin cost primary election. as the first beginnings of some of the health orders that came out with the beginning of the pandemic, the court issued a 5-4 decision helping a district court allowing voters extra time to cast their absentee ballots so they could avoid waiting in line to vote. people really -- literally got covid because of this. i am not going to belabor this point but i think some of this is the decisions being made that don't reflect some of the careful consideration you have made in many of your decisions.
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this is the decision in shelby county. this circuit has not seen many voting rights cases but as you know, justice ginsburg dissented in that case describing the right to vote as the most fundamental right in our democratic system. do you agree that the right to vote is fundamental? >> the supreme court has said the right to vote is the basis of our democracy. it is the right upon which all other rights are essentially founded because in a democracy, there is one person, one vote and there are constitutional amendments that relate directly to the right to vote.
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it is a fundamental right in our democracy. christ i know that is how justice barrett answer that question as well in her recent hearing. i will turn to an area that senator lee and i -- we both shared the subcommittee on antitrust. it is near and dear to my heart. it usually gets relegated to the second round. i am putting it up on the docket here. u.s. antitrust law has been described as a comp intensive charter of economic liberty. i agree. effective antitrust enforcement is a critical role in protecting consumers and promoting innovation, entering new businesses have an opportunity to compete. it is from really early on in our country's history. this has been an up and part of ensuring that capitalism works.
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in january, for the first time since the dawn of the internet, the senate passed the tech competition bill out of the judiciary committee. it is the bill that senator grassley and i supported -- supported. it is called the american innovation and choice online act. it is now headed to the senate floor. i will not ask you about that bill. i want to put this into some context. while tech monopolies have seen 50 to 90% market share in major parts of their business lines. it is clear to me that when you look at the plain language of all of this, the laws in place, these monopolies are not ok. however, court rulings for decades and antitrust have created major obstacles to taking on these cases. it is not just the court ruling. it is on us, the dawn of the
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internet. decades having past. it is on the senate to update our laws this year to give enforces the resources to do their jobs, something you if confirmed would not have a role in. the role of the courts is also very critical. you have been nominated to replace justice breyer hook into the court with a strong background in antitrust law. i know you handled a case -- i think it got decided the merger was abandoned. this was back in 2017. i will quote something that just as by one said he told this committee. if you're going to have a free enterprise economy, you will have strong and effective antitrust law. do you agree with justice breyer
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plaza statement? how would you characterize the goals of our antitrust law? >> thank you senator. the antitrust laws protect competition and as you said, therefore protect consumers and competitors in the economy as a whole. the sherman act and the clayton act were broad in their statements and their protections and there is a lot of precedent in this area. if i were confirmed, i would use my methodology to look at the precedents in these areas. to ensure that any legislation that i was considering is interpreted according to the text consistent with congress's intent.
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and in the area of antitrust, that is ensuring that there is consumer protections. >> very good. and just to fly it out a little bit, since the 1980's, these cases have really made it increasingly difficult to enforce the antitrust laws. and protect competition. during that same time, i know many of my colleagues know this, we have seen a rise in industry consolidation, market power not only intact with companies like google and amazon and facebook and apple but also across our economy in everything from pharma to cat food. what role do you think that
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congressional intent should play in the court interpretation of the antitrust law? i say that because i think that we are dealing with some cases where justices have actually substituted their own ideologies for the intent of congress in originally passing the law. i think it was justice souter who said once before this committee that when we are dealing with antitrust law, we are dealing with the most spectacular examples of delegation that our legal system knows and he added there is a respect for legislative intent. this has to be our anchor for interpretation. what role do you think this should play in the court interpretation of the antitrust laws? >> thank you. i have interpreted a number of statutes in my near decade on the bench and in every case, the
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text of a statute is what the court looks at in order to ascertain what the legislature intended and that is important because as i have said, courts are not policymakers and judges should not be importing their own policy preferences. judges are restrained in our constitutional scheme. in order to affect the will of congress in terms of their interpretation of the law. >> thank you. i will turn to another topic. that is freedom of the press. we have recently witnessed unprecedented attacks on journalists and journalism.
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whether it is violence overseas, recently losing members of the press and just the last month in ukraine or threats and intimidation at home. this is very concerning to me given the important role of the first amendment. my dad was a newspaper reporter. the issue hit home for me. can you talk about your view of the role of journalists in our democracy? christ thank you. journalists, freedom of the press is protected by the first amendment. it is about the insemination of information which is necessary for a democratic form of government. the supreme court has held as much and that is the basis for the court's determinations in protecting the press from
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liability in the new york times versus sullivan and its progeny. christ as you know, that ruling was a unanimous ruling and the court held that when newspapers report on public officials, they are only liable for untrue statements that are published with knowledge or reckless disregard for whether the statement was false. they based their decision on our country's profound national commitment to the debate on public issues. it should be uninhibited, robust and wide open. that is their quote. that erroneous statement is inevitable in free debate. it must be protected if the freedom of expression are to have the breathing space they need to survive. do you agree that those principles are just as relevant today as they were when the supreme court first decided new york times v sullivan?
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>> this is the continuing binding precedent of the supreme court. it doesn't state the principles that the court has determined are undergirding the first amendment right to free press. >> the supreme court of thought -- declined to review a case in which the 11th circuit applied justice thoms and justice gorsuch, the east dissented from the decision not to grant this, arguing the court should reconsider its holding in sullivan. how would you approach a case that would limit or overturn the central holding in new york times v sullivan? >> thank you. anytime the court is asked to revisit a precedent, there are criteria that the court uses to decide whether or not to
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overrule a precedent. the new york times versus sullivan is a precedent and it is very important. the supreme court should maintain its precedents for predictability and stability in the law. if the court is asked to revisit a precedent, it -- the criteria of what it looks at is whether the president is raw. whether there has been reliance on that precedent. whether there are other cases similar to that precedent that has now shifted so that it is no longer on firm footing.
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whether or not it is workable. sometimes the supreme court will issue a ruling and determined later on that it is not actually doing what the court intended and whether or not there are new facts or a new understanding of the facts. those various criteria are what the court looks at to decide whether or not to overturn a precedent and they would be like -- they would be what i would look at if i were confirmed. >> you entered one of my questions. you said this is a bedrock legal principle that ensures consistency and impartiality of judgments. i think as you know, you talk more broadly about this, moving off of the first amendment question, throughout the court
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history, this has been so key and the court has relied on it to maintain stability and reaffirm its impartiality as a former justice, i know senator durbin just read a very famous book about him -- he wrote a very famous book about him. justice harry blackmun who justice breyer succeeded on the court has said in planned parenthood, he said what has happened today should serve as a model for future justices and a warning for all who try to turn this court into another political branch. what role do you think this plays protecting the independence of the judiciary and avoiding the perception that the court is acting as another quote political branch. >> i think it plays a very important role as a doctrine
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that keeps shifts from happening in the court. as i previously mentioned, it is very important to have stability for the rule of law purposes so that people can order themselves and predict their lives given what the supreme court has already said. if there were massive shifts every time a new justice came on or every time new circumstances arose, there would be a concern that public confidence would be eroded. this is a very important doctrine that the supreme court has established and one that furthers the rule of law in this country. quite the confirmation hearing
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is expected to continue shortly. hearing next from senators cotten and booker and then a break. about 30 minutes for that break. and then also off and blackburn will hold their first round questions until tomorrow.
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>> we want to make one thing clear. senator blackburn, you will be recognized this evening. senator tillis will be paired tomorrow with senator allsop for the morning show. >> i felt like we should just finish tonight. >> we are trying to. >> i totally appreciate that. >> you asked it to be on the program tonight and we will put
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you on it. >> mr. chairman, before we start this questioning, right before the break, i asked the chairman -- whether or not the democrats had access to judge jackson's judicial record. you did not answer me at the time. each of the republicans was handed this piece of paper. this is a charter probation recommendation. we were just told the white house gave it to democrats. mr. chairman, how would you have reacted if the white house shared digital -- judicial?
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christ your own counsel decided -- >> that is the disclosure to the whole committee. in this case, is there anything else democrats have access to that you have not shared with republicans on this committee? the fact that they have not raises the incident. >> you always draw your own inferences and i know where most of them had. christ is there anything else that democrats have been republicans do not?
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>> the white house gave this to some of us earlier but not all of us. christ it was available to anyone that requested it. christ you had to be clairvoyant and know that they had it? >> no. it is pretty obvious. >> you would know that he wants to. all of this information became relevant to countering. >> i would be expected to say "jeez." >> the point i am getting to is and you know as a good lawyer, i was not aware of the fact that this was available. they asked for copy and within one hour or two, you received the same copy. >> when did you guys get your
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copy? >> sometime today. >> that covers a lot of ground. >> i don't have any personal knowledge of this. >> does your staff know? >> i talked to them earlier. >> i just want to make this -- i don't want to make this a partisan issue. i got this 10 minutes ago. i am very upset, i joined ted cruz. >> mr. chairman, i think it is significant. we had no reference in presentence reports. it seems to me that if we are going to have a selective
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incorporation, we have to have access to the whole report. i respectfully request that we be given access to these reports. they have been made by a member of the committee in reliance on information that we have not had access to. i think we need to be given those. >> i would like to draw this to a conclusion. i can tell you what i know. here is the point. most of this information was published in the washington post five days ago. this is not -- >> the questions raised by any of us, is this an attack? >> this is regarding the most
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heinous crimes imaginable. don't call these questions attacks. >> i have characterized them as attacks and other things as well. i think it is clear what is going on here. now you have all the information that we have. >> judge jackson said she relied on the probations, recommendations. the probation office recommended 18 months and judge jackson only sentenced him to three months. you can get more than that almost for a speeding ticket. given that she raised it as the basis for her sentence, it is highly relevant to the committee analysis to see what the presentence report says. why did they recommend 18 months and she only sentenced to three months?
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>> in the case of u.s. versus hawkins, -- bryce it is the probation recommendation. we don't dispute that the guideline said it two years ago. >> the government probation recommended sentence is well below the guidelines. the government recommended 24 months. the defense recommended one day. i am telling you it was published in the newspaper. >> i cannot help what is linked to the newspaper or not. you keep referencing discovery. this is not litigation. both sides of the aisle have a right to the record. >> for some reason, yours i did not request the information. >> how would we know to request? >> i request all of the information you magically have
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and you are not sharing with the other side. >> so noted. we will continue with the questioning. >> we are questioning the presents of reports which are highly relevant. >> i want to talk about crime. in 2019 there were about 16,000 murders in america and in 2020, there were more than 20,000. that is a 25% increase in one year. 2021 data is not complete but we know many cities have reached record levels of murder including philadelphia, atlanta and milwaukee. at the same time, the prison population has decreased by about 14%. in part from pandemic policies but also from fewer prosecutions and weaker sentencings. safe to say there is a surge in crime. especially violent crime and murder across america. you noted some members of your family have law enforcement backgrounds and i honor them and thank them for their service.
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does the united states need more police or fewer police? >> thank you, senator. as you just noted, i have law enforcement in my background. i am very familiar with the problems that crime causes in the communities where we live. >> i am sorry, we have a few minutes here. you have a lifetime appointment is confirmed. i asked a simple question. does the united states need more or fewer police? >> the determination about whether there should be more or fewer police is a policy decision by another branch of government. it is not something that judges have control over and i will stay in my lane in terms of the kinds of things that are properly in the judicial branch.
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>> you don't want to address whether or not the police needs more or fewer police. we will move on to sentencing. there has been a lot of talk about criminal justice and sentencing. is someone more likely or less likely to commit a crime if they know they will be caught, convicted and sentenced? >> senator, what is in my lane is the consideration of particular cases. >> you spoke a lot today about criminal sentencing, the fear of sentencing. you have written a lot about it. it is a very simple question. is someone more likely or less likely to commit crime if they are more certain they will be caught, convicted and sentenced? >> senator, i am aware from my work on the sentencing commission and not as a judge that there is research into recidivism rates, into
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rehabilitation, into the factors that go into determination about whether someone is more or less likely to commit crime. part of what congress has taken into account when it determined that one of the purposes of punishment is deterrence, the idea that if someone is convicted and punished, they will be deterred from committing other crimes. >> you mentioned that and written about that in your writings. isn't it inherent in the concept of deterrence that people are less likely to commit crime if they are more likely to get caught, convicted and sentenced? why can't you just say that is the case? question senator, it is not that i am avoiding saying that is the case -- >> senator, it is not that i am avoiding saying that is the case. >> that is what you're doing. >> it is very difficult to
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answer questions in general when you asking about things like phenomena related to crime. it is the theory behind deterrence that by punishing someone they will be less likely to commit crime in the future, that is the theory -- >> do you think that theory is correct? >> there is research that shows that deterrence is something that can occur. does it happen in every case? i do not say that. >> do you know how long the average inmate serves in america? >> yes. the answer is 17 years on average. his 17 years too long or not long enough for criminals to spend in prison for murder? >> these are policy questions, whether they are in the sentencing commission, in terms of recommendations, whether they are in congress, they are not
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the kinds of things that i can opinesen. cotton: you don't wano opine about whether or 17 years is too long or too short a time sentence for murder? judge jackson: congress has prescribed a number of factors judges look at when they sentence. it may in many cases not be. i cannot answer in the abstract. sen. cotton: let's turn to rape. do you know how long the average inmate convicted of rape serves in america? judge jackson: rape is not a crime in the federal system that i am familiar with working with, so i don't know. sen. cotton: 7.2 months. do you think 7.2 months is too long or too short for someone convicted of rape? to be sentenced to prison? judge jackson: senator, that is a policy question about the
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egregious crime of rape and congress has said the court is supposed to take into account a number of factors when it sentences. i cannot answer in the abstract. sen. cotton: these are not abstract. these are very concrete. these are just the length of sentence. if you are caught, convicted and sentenced. let's look at cases where people are never caught. in 2020, murders increased by the fastest rate ever in the united states. do you know what percentage of murders are solved in america? judge jackson: i do not. sen. cotton: about half. 54% in 2020. do you think we should catch and imprison more murderers or fewer murderers? judge jackson: it is very important people be held accountable for their crimes. so that is a fundamental tenet of the rule of law. sen. cotton: is that a yes, we
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should catch more murderers, specifically the 46% of murderers who get away with that? judge jackson: you are asking about enforcement or law enforcement, -- sen. cotton: it is a simple and common sense question. 46% of murders go unsolved. should we catch more of those murderers or fewer of them? judge jackson: senator, we should hold people accountable for their crimes. if people are not held accountable, that's a problem. sen. cotton: let's turn to assaults. do you know how many assaults were solved in this country in 2020? judge jackson: no, senator. sen. cotton: 56% of all assault victims did not receive justice. should we catch more criminals who commit assault against innocent people or fewer? judge jackson: senator, it's very important people be held accountable for their crimes. if they are not, it would be a problem for the rule of law. sen. cotton: let's look at
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sexual assault and rape. do you know what percentage of sexual assaults and rapes go unsolved in this country? judge jackson: i do not, senator. sen. cotton: 77%. more than three quarters of all sexual assaults and rapes go unsolved. do you think we should catch and imprison more rapists and sex criminals or fewer? judge jackson: senator, one of my two uncles was a detective in the sexual crimes and battery unit. i'm very familiar with that type of crime. it is a horrible type of crime as are all of these you are articulating and it is important for people to be held accountable for criminal behavior. fundamental to the rule of law. sen. cotton: in it to be 20 alone, well over one million violent crimes went unsolved. in america.
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do you think we imprison too many violent criminals or not enough? judge jackson: senator, it is important for our rule of law to ensure people are held accountable who are breaking the law in the ways that you mentioned and otherwise. sen. cotton: do you think the families of all of those victims think? do you think they should -- that we should arrest all of these criminals who get away with it? judge jackson: senator, i know with the family of law enforcement officers think because i'm one of them. i know what crime does to our society. i care deeply about public safety. and as a judge, it has been my duty when i was at the trial level -- i'm no longer there, but when i was at the trial level, to ensure people are held accountable for their crimes.
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sen. cotton: let's turn to the crime of child pornography. i know there has been a lot of talk about it today. a lot of people have tried to explain the various differences in cases and sentences they got. let me ask a simple question about it. should the united states strengthen or weaken sentences for child pornography's? judge jackson: senator, that is not a simple question and the reason is what this country does in terms of penalties is an congresses province. you all decide. you all decide what the penalties are, you decide what the factors are the judges used to sentence. if you determine that any sent -- any set of penalties is insufficient, then it is in your purview to make that determination. there are many crimes congress has determined warrant mandatory
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minimum penalties, warrant other kinds of penalties, and that is in your purview to determine. sen. cotton: i say, judge, whether we should strengthen or weaken sentences for child pornographers is a simple question. but i will move on. a bunch of elite lawyers, whether they are public defenders or law professors think sentences for child pornography are too harsh. i don't and i've met a lot of normal americans who don't. you have said repeatedly sentencing is a discretionary act and i agree with that, but you always seem to use your discretion in these child pornography cases to reduce the sentences. if i had that discretion, i would probably throw the book at child pornography's. maybe that is just me. last year, more than 100,000 americans died from drug overdose. drug overdose death and gang
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crime have skyrocketed in recent years. at the same time a lot of lower sentences have been advocated, including on occasion, by yourself. in general, do you think the united states should weaken or strengthen sentences for fentanyl traffickers, not users? judge jackson: senator, whether or not congress chooses to strengthen or weaken penalties for any crime is a determination of this body, which is ordinarily made after study and review come a determination, that is in the province of congress. sen. cotton: judge, you have said before sentencing is a discretionary act. that is literally the judge -- the job of the judge in many cases. judge jackson: respectfully, senator, the judge makes that determination not based on one data point in general, which is
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what you asked me -- in general, should we lower or heighten sentences of top aide judge is making a determination in a particular case, looking at all of the factors. it is discretionary, for sure, but we do so within the bounds of a sentencing range that congress prescribes and at times, which congress decides a penalty needs to be heightened, they impose a mandatory minimum that our range is shorter and, when we are looking at the crime, we are not looking as a policy matter across all fentanyl crimes in determining whether the penalty should be increased. as a judge, we are asked in the context of a single prosecution regarding a particular person who has committed a horrible crime, but also says congress is
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a person who has a life, who has a job, congress has told judges they have to look at and they decide what penalty to impose in that particular case between the range congress sets. so it is not a situation which i can, in my role as a judge, tell you as a general matter whether a penalty should be increased or decreased. sen. cotton: i have to say, i think there's not many americans, especially not 100,000 americans whose lost someone to drug overdose think these are tough questions, but let's move on. when you are in the sentencing commission, you were for retroactively reducing drug sent -- drug trafficking sentences. a drug kingpin dealing fentanyl gets sentenced and gets lucky, gets in front of a new judge who is sympathetic and thinks he got a raw deal or maybe he gets in front of the same judge a few years removed from seeing the faces of the victims of his
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crime. do you think resentencing years after a conviction tens to reduce sentence links -- sentence lengths? judge jackson: senator, respectfully, i wanted to remark on the previous question in your statement that these are not difficult questions. it's not that they are difficult questions, it is that they are not questions for me. i'm not the congress, i'm not making policy around sentencing. my job is to look at a particular case and decide what the penalty should be within the range congress prescribed. sen. cotton: i understand. you were making policy at the senate commission and implement a changes to sentencing guidelines. do you believe resentencing years after conviction tens to reduce sentence lengths? judge jackson: i'm not sure i
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understand your question. obviously if you re-sentence, you are giving the judge another opportunity to look at the circumstances in light of the changed penalties. sometimes the judge in that new situation will keep the same penalty. a resentencing is just an opportunity for the judge to reevaluate in light of the changed circumstances. sen. cotton: almost without exception, retroactively weakening sentencing laws and guidelines let's hardened criminals out early. aisleways hear the argument, i hear it from senators on this panel, that each case the goes before a judge, it won't be an automatic release because each judge is going to assess the facts in the arguments. in 2014, you said judges would not likely reduce the sentences in the vast majority of cases if
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sentencing guidelines for drug trafficking were reduced. i think you missed that one. when retroactive reduction took effect, approximately two thirds of all convicted drug traffickers who asked for early release got it. that's 31,614 hardened drug traffickers back on the streets. more than 7500 of those hardened drug traffickers used weapons and their crimes. that means only one third of these drug traffickers who sought to have a retroactive reduction in their sentence were denied. is one third a vast majority? judge jackson: senator, it's hard for me to answer questions about these numbers because i'm trying to understand whether this is a retroactive release that was a result of the sentencing commission's actions or congresses. congress made a decision about
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retroactive reductions in drug penalties, so i'm not sure -- sen. cotton: we always hear the argument, whether it's from members of congress, including senators on his committee or the sentencing commission, that we shouldn't worry, that there will be individualized case-by-case determination. judge jackson: that is my experience. when there is a retroactive change, what happens is whether it is the guidelines that are changed or the laws that are changed, which happens in congress, there is a subsequent determination as to whether or not to apply that retroactively, play that change so both the people who get convicted of that penalty moving forward and the people who have already been convicted, both of them get the benefit of the change if they determination is made to make it retroactive.
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under that circumstance, where you are talking about a penalty change applied to prior people, each one of those prior people goes back for a judge and a judge, usually the sentencing judge in the first instance will reevaluate whether or not -- this is generally, there are some exceptions, but generally speaking, the judge will reevaluate whether or not to give that person the benefit of the change. this is an individual assessment. that is what congress requires in every sentence and ultimately , one that benefits all of us under the law because judges are being asked to look at these cases and not make generalized determinations. sen. cotton: so the 2014 comment was about the sentencing commission. but whether it's in front of the commissioner congress, we always hear this argument that judges
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are going to make individualized cases and not many will be released. of the one third that were not reduced, the vast majority of those were not eligible. the percentage of cases in which a sentence is not reduced for public safety reasons, because someone is viewed as to dangerous is 1%. judge, do you remember a man named keith young? judge jackson: yes. sen. cotton: good. for the benefit of my colleagues, lamy cover the basics of this case. you sentenced him in 2018. he was a career criminal who was previously convicted of trafficking cocaine. he was running a drug business in his house where his children lived and was found with two one kilogram bricks of heroin worth hundreds of thousands of dollars along with a gun, ammunition, thousands of dollars in cash and equipment to cut and package equipment for retail sale. the drug lab confirmed there was
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fentanyl in the heroin. in one of the two bricks, there was actually more fentanyl than there was heroin. at the d.c. jail awaiting trial, he bragged about his arrest and how he was a kingpin. those are his words, not mine. kingpin. he was even recorded calling his wife and brother to give him instructions on collecting drug money on people for them. the prosecutors filed a note of his criminal history, meaning he faced a mandatory minimum of 20 years. you did not seem to like that. in fact, at his sentencing, you said -- this is a quote, that you shared his frustration that you could not give him a lighter sentence. i was shocked to see this in the transcript. i was also shocked that you apologized to this drug kingpin for having to follow the law. you literally said you didn't think 20 years was fair. and for this, i'm sorry. mostly because i believe in
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second chances. you apologized to this career criminal, a drug kingpin, in his own words, not some low-level first-time offender that made a bad choice. that was in 2018. but in 2020, you got a second chance. after his sentence, congress passed something called the first step act which reduced sentences for drug traffickers with lengthy records. during the drug pandemic, lots of criminals tried to twist the provision which was intended for terminally ill, elderly inmates to get early release and blame it on covid. you had none of that, and that's good. you rightly said at his resentencing hearing, covid-19 is not only present in prisons and you said young's past as a smoker and his claim of various other health issues did not entitle him to early release. if you stop there, i would've thought it was a great example and how you followed the law and made a will region decision.
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unfortunately, he did not stop there. you said "congress it not make their changes under the first step act retroactive. but if they had, you could have given him a reduced sentence. then you said no matter what the law says -- and this is a quote -- the court deals as though in this moment, per his compassionate release motion, the court evaluates the sentence under the first step act, so it is almost as if i am sentencing him today, and if i were to do so, he would face a sentence that would be well below the 240 months mr. young received, so for that reason, i will grant mr. young's motion." before you granted this fentanyl kingpins motion, did you contact any of the victims of this case? judge jackson: senator, thank you for allowing me to address
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mr. young's situation. sen. cotton: i ask a simple question. did you contact the victims in this case are not? judge jackson: senator, mr. young was not released. his sentence was reduced and i did not contact the victims because there were no victims. he committed a crime, a drug crime. there were no identifiable victims in his case. sen. cotton: drug crime is not a victimless crime. 100,000 americans were killed by overdoses. judge jackson: understood, senator, but there was no one to contact. sen. cotton: he filed a motion for compassionate release and you denied that rightly, but you reduced his sentence. he didn't file a motion to reduce his sentence. he was not eligible under the first step act because it was not retroactive toward him. you took a motion for compassionate release to get out of prison and turned it into a motion to reduce a sentence so
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he will be released seven and a half years earlier, years from now. last week, judge, when we talked, you talked about initial restraint. is transforming his motion for compassionate release into a motion to reduce a sentence for this drug trafficking kingpin an example of judicial restraint? judge jackson: yes, senator, it is and i will explain how. mr. young, as you say, was facing originally a sentence of 20 years in, which i imposed. i tried, mr. young, who went to trial, primarily because he was facing such a long penalty. i looked at the evidence in this case. he was absolutely the kingpin you are talking about. the way that our laws work, the
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20 year sentence he received for the amount of heroin that he had was increased based on a sentence he received 10 or 15 years before. he had no criminal history between the old, old sentence, i can't member exactly what it is and i'm sure people will look it up, but 10 or 15 years before, he had some minor sentence. then he had a serious, terrible sentence. the government files what is called an 851, which is an enhancement based on his really, really old come a prior criminal history. i followed the law, which said he had to go to jail for 20 years. it would have been more like 10 years if the government had not
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taken into account is very old criminal history, but i said fine, this is the law, i'm following it, you are going to jail for 20 years. in the interim, covid happens. we get lots of compassionate release motions and there is a statute congress has enacted which allows defendants to seek compassionate release, to seek reduction of their sentence, not just release, reduction, release , some adjustment to their penalty under the law if there are extraordinary and compelling reasons to do so. that is the quote from the statue -- extraordinary and compelling reasons. it doesn't say anything more narrow than that, though you do have to look at the guidelines related to compassionate release. all of which i did related to his motion and he argued several things. he argued his smoking, his
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asthma, these were reasons, he said for compassionate release and i disagreed. but i did find extraordinary and compelling is the fact that between the 20 year sentence i gave him originally and the compassionate release motion he filed, congress changed the law. congress decided the old penalty, the old crime was no longer eligible for the increase , so that a person who was convicted at the time of his compassionate release motion for doing exactly what mr. young had done would not get a 20 year sentence. that would not be lawful for a person at that moment. and one of the things congress says to the judges is care about unwarranted sentences
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disparities. care about the fact person you are sentencing is being treated differently than someone else who committed exactly the same crime. and i understand it was not retroactive in the sense that everybody absence the compassionate release motion would not have been eligible for resentencing, but here i have a defendant before me and all of the factors congress has asked me to take into account, and a compelling argument that there were extraordinary and compelling circumstances, that is a change in the law that would create unwarranted sentencing disparities if i did not take account of it. so what i determined under those circumstances is i would re-sentence mr. young to the penalty congress had decided was the appropriate penalty for the conduct he committed as of the
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time of this motion. sen. cotton: judge, congress did change the law and the first step act. that was a terrible mistake. congress specifically did not make that change retroactively and use all that and you thought it was extraordinary and compelling even though congress did not make it metro -- did not make it retroactive. you chose to rely -- to rewrite the law because you are sympathetic to a fentanyl drug kingpin who you had expressed frustration at having sentenced to 20 years in the first place. you twisted the law and rewrote it. you cut the sentence of a drug kingpin. that is what you did. judge jackson: respectfully, senator, i disagree. congress provided judges through the compassionate release motion mechanism with the opportunity to review sentences. congress, prior to the
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compassionate release mechanism being enacted, a judge who imposed a sentence would have no opportunity to revisit. in mr. young's case, the question was with this compassionate release motion, under a circumstance in which congress had changed the law, was that an extraordinary and compelling circumstance to revisit his sentence and i made a determination that it was. sen. cotton: i suppose if you are confirmed, we can count on you to always rule in favor of retroactivity no matter what the facts of the case are because it was a blatant, blatant rewrite of the law so you could reduce the sentence of a drug kingpin you did not like sentencing to 20 years in the first place. judge jackson: no, senator, it was not. sen. durbin: senator booker. sen. booker: approaching 11
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hours of a long day and, forgive me, i want to go back to my earlier senators, lindsey graham. i think he ask you something and i would like to put it this way -- on a scale from one to 10, how deep is your faith that i won't ask that question? judge jackson: are you asking me or you won't ask me? sen. booker: i won't ask you, but i do want to go through some of the things my colleagues did on topline and some of it i found today just didn't really hold water. i want to start with my friend and colleague, ted cruz, who is my friend. he is one of my favorite texans. a lot of times in this culture of politics, the reality is we know each other, we get to go get -- we get to know each other over years and i've had the privilege to work with ted on a
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lot of good policy. i went back and re-listened to his questioning of you about critical race theory and he referenced your speech, which i had not read, you harvard folks are so focused on these things. i read your speech and i was very surprised. ted had a very big chart. i think he needs to give senator whitehouse some advice on charts. it was almost as if they were proportionate to their state sizes. [laughter] i would request my colleagues in the democratic party stop interrupting me. he talked about your speech and i read your speech, there's a couple of things that jumped out. he acknowledges come a very powerful moving speech about extra ordinary lack women. i have a criticism that your mother was not in it but i will leave that alone. there is something he honed in
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on, almost as if it seemed to be accusations which don't hold merit. we have a saying in new jersey, i felt it was all hat and no cattle. he said you called the woman who wrote the 1619 project, that you called her provocative. that's not a compliment necessarily if you call someone provocative, is it? judge jackson: no. sen. booker: i think ted cruz is very provocative and that doesn't mean i agree with what he saying, his philosophy or his statements. but he pointed out you called the author acclaimed. she won a pulitzer prize, correct, so she is acclaimed. judge jackson: she is. sen. booker: but nowhere are you heralding her as this is a reflection of your philosophy. judge jackson: correct. sen. booker: i don't understand that at all. another part of his chart -- prickle race theory when you're
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talking about policies in general. i went back to that talk and saw you through everything in there. you're talking about psychology, economics, all different types of disciplines as touching upon the law. everything seemed to be in there except astrology. you understand listing a list of things that people touch the law, they were not your philosophies and all. judge jackson: correct, and that speech was not related to what i do as a judge. that was talking about sentencing policy and all the different academic disciplines that might relate to it. sen. booker: finally, we are entering an age in american society where lots of folks are being banned and lots of talks about books being read. you are on the board of a private school and you have no supervision or authority over what books the children read in a private school, correct? judge jackson: correct. sen. booker: i appreciate that.
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jumping quickly to a lot of talk today about these child exploitation cases. senator durbin, i think josh hawley used the word tact. i don't know at that point of sensitivity was. individual cases, we've heard about to you have presided over as a judge, you resided over more than 10 or 15 cases? judge jackson: i've presided over 14 cases that involved child sex crimes, but over my career, i've presided over more than 100. sen. booker: cases are heavily fact-specific. judge jackson: that's true. sen. booker: do you remember all the facts in the case senator hawley -- judge jackson: i do not. sen. booker: and facts matter. you're looking at all the fact
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of the case, not just what might be talked about later, you have to take everything into account and make a decision, correct? judge jackson: yes. that is what congress has required judges to do. sen. booker: you went to this elite law school -- i went to a gritty inner-city law school, yale. you know this better than me but it was 1984 that the sentencing laws, sentencing standards were passed down, correct? judge jackson: i believe so. sen. booker: later in 2003, things were updated. at 1984 was before the internet and i want to clarify, the booker decision, could you clarify for the record -- no relation to me whatsoever? judge jackson: the booker decision, which earlier, i mentioned scalia wrote it -- in fact it was justice stevens. justice scalia had written a
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previous decision that was similar. the booker decision made the guidelines, the sentencing guidelines advisory. sen. booker: why? why would the supreme court do that? judge jackson: they determined, in essence, if the guidelines were mandatory, that would violate the right to a jury trial to have jurors decide every aspect of your sentencing. sen. booker: it is sort of the separation of powers. this is really important. judge jackson: yes. sen. booker: that gives judges latitude. judge jackson: yes. sen. booker: i've read conservative periodicals looking at this line of attack, it's not a negative pejorative again -- i've seen conservative papers,
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liberal papers, mainstream papers, all say this does not hold water. the reason is, and unlike white house and ted cruz, i don't have a chart. but i would like to hold this up for you. you are well within the norm nationally for going below the sentencing guidelines because of this problem where you have this in congruency that judges on both sides that have been appointed by people on both sides of the aisle have seen. i want to make that clear -- you are well within the norm in the united states america. i'm a former mayor in one of my mayor friends says in god we trust, but everyone else we need data. the data shows you are not some outlier. and forgive me because i sat here and was a little insulted about the accusations that somehow this mother of two,
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confirmed three times by the united states senate, who has victim advocacy groups writing letters for you, who has child victims advocacy group supporting you, who has presided over fact-specific cases of the most heinous crimes, that somehow the implication that you are somehow out of the norm of other federal judges we have confirmed with these issues have never come up, who, the majority of the decisions, percentages of sentences below guideline range in nonproduction child pornography range, 80% are under guidelines. in missouri, 77%, iowa 62%, north carolina 72%, and nebraska, 81 percent. so on down to utah, 71%. this implication that somehow your thoughtfulness on these
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very dense, fact-specific cases is somehow out of the norm to me does not hold up. add that to the endorsements you've gotten from folks that deal with victim advocacy groups is to be just a line of attack that does not hold. in no way, i'm sorry. in the totality of your career that you've accomplished and what you've done, i think it is unfortunate that unlike the sort of fair arbiters who dismissed this, i appreciate the way you have stood and addressed all that stuff. that brings me to the larger implication -- you talked a lot about your uncles. one of them served in baltimore, is that right? a police officer?
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judge jackson: my brother was a police officer in baltimore. sen. booker: the gentleman over there? judge jackson: yes. sen. booker: who volunteered to serve in the united states military. and you've talked about that police work. judge jackson: yes. sen. booker: the nickname of our city is brick city. your brother and i understand something. the majority of murder victims in the united states america, do you know who the majority of murder victims are? judge jackson: i don't. sen. booker: they are black men. i imagine your conversations with your brother and two uncles , you who have patrolled some of the streets, i imagine you feel in a different way about the anguish of what many communities of color struggle with when it comes to crime, my right? judge jackson: you are right,
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senator. it is very anguishing and it is something i know all too well. sen. booker: and you are a person has -- who has the same fear many mothers have with daughters who do go out into this world -- my mom used to say when you have a child, it's like your heart going around outside your body all the sudden. i find it hard to believe, given your law enforcement background, you are a mom, that you take any of this urgency to keep america safe -- and then i see folks i know well, i've worked -- i thought jim pascoe, before i knew him at first i thought he was an ogre, the biggest police
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union -- i had some tough negotiations and he and i sat down and we shared our stories and we realize we were coming from the same place when we were working on police reform. fop endorsed you and they wrote a powerful letter. i won't read it again. the ifp -- the ifc p represents the bosses and managers. they endorse you. another group called noble, do you know them? judge jackson: i do. sen. booker: the black law enforcement organization, people like your brother who love their communities, who have seen, like i have, too many young men lying with let holes, bleeding into our pavement. these are folks who come from communities like your brother knows where you too often see sidewalk shrines to murdered youth.
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i've talked to the women and men of noble so many times. anybody ever accuse them of being soft on crime? they understand the complicated factors of crime in our country. and what they have to say about you, i won't read it, it's just beautiful. law enforcement families, mother of two, law enforcement organization after law enforcement organization, victims advocacy organization after victims advocacy organization, republican appointed judges, democratic appointed judges, that is who is in your corner. we are politicians. we have a sworn oath right now. i just watched you, with dignity and grace, field what i can only imagine is behind those questions is this doubt that is being sewn. i just want america to know that
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when it comes to my families safety, and it comes to newark new jersey or my state, god, i trust you. i trust you. now i brought in your mother and have to go back there. my mom has a saying that is awfully embarrassing when she talks about me -- she says she will introduce me and say behind every successful child is an astonished parent. [laughter] but there is something about your mother, looking at her, she doesn't seem all too astonished. she seems like very slyly, she knew that this day might come. i want to share with you that i have done a lot of hiring. before i was a -- before i was in a legislative body, iran new jersey's largest city. i could write a book about how
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it made me a good manager. the first mistake i made as i was looking for the most talented, credentialed, skillful, smart people to help me run things and i soon learned it wasn't enough. i made some mistakes in hiring. i began to see those skills which you have a tremendous amount of, it has been said so many times, stacking you up against other supreme court judges, you have more qualifications and credentials than many of them. but i learned you should hire first, necessary credentials are not sufficient, that you should hire for character. that is what made me hire a great team eventually and we operated so well. i believe i've gotten to know your character over these weeks, but i want america to know more about your character right now. i know my values. booker t -- excuse me, james
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baldwin said it -- children are never good at listening to their elders, but they never fail to imitate them. if i want to know your character , i want to hang out with your parents a little bit. let's draw them into this conversation. we won't swear them under oath, but could you share with me what are their bedrock values that are most a part of your values that you hope and pray are your grandchildren's unborn grandchildren's values. what are the most important values you inherited from those folks over there? judge jackson: thank you, senator. i inherited a number of bedrock values, as you say, from my extra ordinary parents. as i mentioned, my parents grew up in a time in this country in which black children and white children were not allowed to go to school together. they persevered, they were the
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first in their families to go to college, to have that chance. they each went to historically black universities and they taught me hard work. they taught me perseverance. they taught me that anything is possible in this great country. and i think it came, as i said in my introduction, from the sea change that we had in this country from the 1960's where congress passed to civil rights act and african-americans finally had the chance to become a part of the dream, to become a part of the fabric of this wonderful nation. my parents moved to washington, d.c. because this is where it all started for them in terms of
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having new freedoms. and i was born here. on that hope and dream. i was born here with an african name that my parents gave me to demonstrate their pride, their pride in who they were and their pride and hope in what i could be. sen. booker: and it seems to me, as a guy whose parents came here -- you and i were both born here months apart. i would hear my parents tell stories at the dinner table about facing bigotry. my father told stories about his early jobs but i never noticed a hint of bitterness or that hate he saw never generated hate in him. he just love people. judge jackson: that is correct,
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senator and i would say my wonderful parents went on to become extraordinary public servants. they had new opportunity. they could have done other things, but each of them decided to give back to the community. my mother was in the public school system. she was a teacher and then became an administrator and became the principal of a magnet school for the arts in miami. a new school that had started up and became the beloved principal of new world school of the arts. so many of her students continue to see me, meet me, and they know me through my mother. sen. booker: and she had diverse students and she loved all those children, black, white, asian -- judge jackson: every one. sen. booker: i want to push you
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a little more. i have some people i respect on the others of the aisle. faith is important -- i was teasing senator graham earlier. but i wouldn't want to ask a thing specific about your faith except this because you brought it up in your opening statement. i have to tell you, i don't think black women have any providence over struggle. people from all backgrounds in america struggle. but i do know often, as trailblazing black women, they have often faced many challenges being the first or being a trailblazer. i know on your journey to this moment right now, you have faced very tough moments. you probably have been knocked down by life. i always say if america hasn't broken your heart, you don't love her enough. you've been heartbroken by circumstance. you have been like zora neale
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hurston who says i've been through troubles kitchen. you've been like langton hughes -- life for me has been no crystal stair. could you talk to me about one moment or what you do when you get knocked down like that? where do you get the grit and the gut's to get back up? and keep on going? judge jackson: well, senator, i think that is something i learned from my grandparents, who, as i said, didn't have it easy. my grandparents, who didn't have a lot of formal education, but who are the hardest working people i've ever known and who just got up every day and put one foot after the other and provided for their families and made sure their children went to college even though they never
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had those opportunities. i reflect on them in the context of this historic moment. i stand on the shoulders of people from that generation. and i focus at times on my faith, when i'm going through hard times. those are the kinds of things i learned from my grandmother, used to have those family dinners and bring us all together and i think that's a common experience of americans. when you go through difficult times, you lean into family and turn to faith. that is part of my experience as well. sen. booker: i want to give you -- there's one thing about your opening statement. i have to say, i haven't shaken
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your husband's hand yet, but yesterday i was mad at him because when he started tearing up at your remarks about him -- it triggered a sympathetic cry and me as well. so i'm a little upset at him. but i will deal with him individually. you said something i found provocative, to use that word one more time. i felt -- i even talked to my staff about it because that statement did not seem congruent to me. i don't know if it was a profession of humility or overly critical of yourself, but i want to end in my last five minutes, giving you a space to explain yourself to me because much to my moms chagrin, i'm not a parent yet and i'm looking at somebody that i admire, but you
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said something that struck me because my mom was a working mom . and, god, it was tough. my colleagues will not believe this, but there was a time i was very melodramatic and i was in an oatmeal bathtub, my mom was getting ready to go on a business trip and i look at her with these sad eyes and i say mom, if you leave me, i will die. she looked at me knowing you don't die from the chickenpox, but i remember going to the bone -- she would tell me later that she loved me. but a lot of women who love their kids can't stay home because we don't have paid family leave in this country. you sit in your opening remarks you haven't been as good of a parent -- i think if i'm paraphrasing right -- as good of a mom as you would like to be.
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and i look at your two girls and i look at you and i don't understand that statement. could you maybe explain for me what you meant and maybe take one more beat and explain what it means to you to be a mom of two young women growing up in america today? judge jackson: thank you, senator. what i said in my statement was that i had struggled, like so many working moms, to juggle motherhood and career. it takes a lot of hard work to become a judge, to do the work of a judge, which i have done now for almost 10 years. you have a lot of cases, you don't have all that many
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resources, comparatively speaking, and it's a lot of early mornings and late nights. what that means is there will be hearings during your daughters recital, there will be emergencies on birthdays that you have to handle. and i know so many young women in this country, especially have small kids who have these momentous events and you have to make a choice. you talked about your mom making the choice to make sure she cared for you in that moment and there are times when obviously you have to care for your family members. there are other times when there are events that you wish you could be a part of but here is the emergency case you have to deal with. so, i said in my opening that girls, you've had to deal with me juggling motherhood and job
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responsibilities and i didn't always get the balance right. i would hope, for them, seeing me hopefully, you all will confirm me, seeing me move to the supreme court, that they can know you don't have to be perfect in your career trajectory and you can still end up doing what you want to do. you just have to understand that there are lots of responsibilities in the world and you don't have to be a perfect mom, but if you do your best and love your children, that things will turn out ok. sen. booker: i'm sure your mom probably feels she wasn't perfect, but things have turned out ok.
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and i will tell you this -- i'm sure they have said it and if they haven't, i'm sure they will. the older i get, the more i appreciate my parents. i know they are proud of you. i sit at home in a room of my ancestors where i have generations of my ancestors pictures up and there are black folk and white folk -- i have a very interesting family tree. i sit there and feel my ancestors sometimes and think about them. i hope right now that you know, at that desk, there are a whole lot of spirits around you with their hands on you. not only your children and parents, but so are your ancestors. mr. chairman, thank you. sen. durbin: thank you very much, senator booker and judge jackson. a lot of politicians on this committee, 22 of them. there's only one cory booker. when he does his cross-examination on the human
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side, i always wait to see can the witness get through this without no emotion. there was a little bit there as you talked about your family, parents and children. cory, you are one-of-a-kind. we have three more to ask questions tonight -- senator kennedy, senator padilla senator blackburn. we are going to break for 20 minutes, grab a bite to eat, freshen up, come back for the last round. the senate stands in recess. [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit ncicap.org] [captions copyright national cable satellite corp. 2022]
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>> the confirmation hearing for judge jackson going into a break for about 20 minutes or so. three more senators will get to question the nominee. senators kennedy, padilla and black earn. we are likely to see the last two committee members all saw tomorrow's round as well. thursday, members of the american bar association and others will testify. while they are on break we will look at questioning from earlier today by texas senator ted cruz.
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>> judge jackson, welcome, congratulations. you and i have known each other a long time. we went to law school together, we were on the log review together, we were one year apart. judge jackson: happily so, i hope, senator. sen. cruz: we were always friendly and cordial. we had a positive and productive meeting in my office where we discussed a number of things, including you were there with former senator doug jones, and we discussed how he and i and a number of other senators had, for two differing years, participated in reading aloud on the senate floor dr. martin luther king jr.'s letter from a birmingham jail, which is one of the truly great advocacy for civil rights our nation has seen. and you and i talked together
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about our shared admiration for dr. king. when senator grassley questioned you earlier, he asked in particular about dr. king's speech on the steps of the lincoln memorial where he said, most critically, i have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character. do you agree with what dr. king said in that speech there? judge jackson: i do, senator. sen. cruz: as we were discussing it, you referenced a speech you gave in january of 2020 at the university of michigan school of law. and after our discussion, i pulled a copy of your speech and read the speech in its entirety. there were elements of the speech that i thought were really powerful. let me say, your opening remarks
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yesterday were powerful and inspirational as well, and i think you and your family, the journey you have taken to becoming a federal judge, becoming a federal court of appeals judge, i think demonstrates the incredible promise an incredible opportunity dish nation offers all of us. as i read your speech at the university of michigan law school, however, there was a portion that surprised me. and in particular, and that speech you referenced the work of, "a claimed investigative journalist nicole hannah jones. this is a quote from the speech, "provocative pieces that the america that was born in 1776 was not the perfect union that it purported to be. and, indeed, ms. hannah jones and her 1619 projects describes the central thesis of the 1619
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project, which the new york times laid out as a revisionist look at history, revising history." she revised her thesis as, "one of the primary reasons the colonists decided to declare independence was because they wanted to protect the institution of slavery. " that claim is a highly contested historical claim. do you agree with with -- with ms. hannah jones that one of the primary reason they declared independence was because they wanted to protect the institution of slavery? judge jackson: thank you, senator. when i gave that speech at the university of michigan, i was asked to speak on martin luther king day. every year they have a martin luther king day speaker, and i gave a speech about black women in the civil rights movement, most of the speech, if not, all
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of the speech was focused on african-american women, their contributions to the civil rights movement, unsung contributions, in many cases, and in some of the more recent african-american women who have made claims, who have done things in our society. one slide was of the generalist, as you say, who made that statement, and i called it provocative. it is not something that i've studied, it doesn't come up in my work, i was mentioning it because it was, at least at that time, something that was talked about and well known to the student that i was speaking to at the law school. sen. cruz: are you aware that sits -- since the 1619 project came out, that it has been roundly refuted by very
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respected historians, including gordon wood of brown university, including james mcpherson of princeton university. mcphillips -- mcpherson called it, "very unbalanced one-sided account that lacks content and perspective." it was so thoroughly refuted that the new york times quietly altered the digital version to remove references to 1619 as the year of america's true founding in the moment america began. were you aware of that? judge jackson: i was not. sen. cruz: so let me ask you, related to the 1619 project, which i believe is deeply inaccurate and misleading, 1619 project is closely intertwined with a movement called critical race theory. critical race theory, as you know, originated at your and my alma mater at the harvard law school.
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in your understanding, what does critical race theory mean? what is it? judge jackson: senator, my understanding is that critical race theory is an academic theory that is about the ways in which race interacts with various institutions. it doesn't come up in my work as a judge, it's never something that i have studied or relied on, and it would be something that i would rely on if i was on the supreme court. sen. cruz: critical race theory, as you know, has its origins with critical legal studies movement, which also came from harvard law school, from a number of critical legal studies professors. they are explicitly marxists and they find their origins in marxism and their critical legal studies frame society is a fundamental battle between socioeconomic classes, critical race theory claims -- frames all
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of society as a fundamental and intractable battle between the races. it views every conflict as a racial conflict. do you think that's an accurate way of viewing society and the way we live? judge jackson: senator, i don't think so. but i've never studied critical race theory and i've never used it, it doesn't come up in the work that i do as a judge. sen. cruz: so, with respect, i find that a curious statement because you gave a speech in april of 2015 at the university of chicago in which he described the job you do as a judge, and you said sentencing is just plain interesting because it melds together marriott types of law, criminal coal law, constitutional law and criminal -- critical race theory. he described at a law school
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what you do is critical race theory. what did you mean by that speech? judge jackson: with respect, senator, the quote you are mentioning there, was about sentencing policy, it was not about sentencing. i was talking about the policy determinations of bodies like the sentencing commission when they look at a laundry list of various academic subjects as they consider with the policy should be. sen. cruz: you were vice chair of the sentencing commission, let me ask again what if you mean by, because that was the official responsibility of yours, what did you mean? judge jackson: what i meant was that there are a number of -- that that does not show the entire laundry list of different academic disciplines that i said relate to sentencing policy, but none of that relates to what i do as a judge. sen. cruz: let me ask you a
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different question. is critical race theory taught in schools, taught in kindergarten through 12th? judge jackson: senator, i don't know, i don't think so, i believe it's an academic theory that's at the law school level. sen. cruz: as you may recall, during her confirmation hearings of justice amy coney barrett, there was a great deal of attention paid to the fact that justice barrett served as a board member on the board of trustees -- trustees at a religious private school. the press focused intensively on the views of that school. in your questionnaire to this committee you disclose that you are similarly on a board of trustees for the georgetown day school, and that you have been a board member since 2019 and are currently still a board member. is that correct? judge jackson: that is correct. sen. cruz: in regard to the georgetown day school, you've publicly said, "since becoming a member of the gds community
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several years ago, patrick and i have witnessed the transformative power of a rigorous progressive education that is dedicated to fostering critical thinking, interdependence and social justice." when you refer to social justice in the school's mission of social justice, what did you mean by that? judge jackson: thank you, senator for allowing me to address this issue. jared -- georgetown day school has a special history that i think is important to understand when you consider my service on the board. the school was founded in 1945 in washington, d.c. at a time in which, by law, there was racial segregation in this community. black students were not allowed in the public schools, to go to school with white students.
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georgetown day school is a private school that was created when three white families, jewish families, got together with three black families and said that, despite the fact that the law requires us to separate, despite the fact that the law is set up to make sure that black children are not treated the same as everyone else, we are going to form a private school so that our children can go to school together. the idea of equality, justice is at the core of the georgetown day school missing -- mission, and it's a private school such that every parent who joins the community does so willingly with an understanding that they are joining a community that is designed to make sure that every child is valued.
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every child is treated as having inherent worth and none are discriminated against because of race. sen. cruz: so, judge jackson, all of us will agree that no one should be discriminated against because of race. when you just testified a minute ago that you didn't know if critical race theory was taught in k-12, i will confess i find that statement a little hard to reconcile with the public record. if you look at the georgetown day school's curriculum, it is filled and overflowing with critical race theory. that among the books that are either assigned or recommended, they include critical race theory, and introduction. they include the end of policing , and advocacy for abolishing police. they include how to be an
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antiracist. they include literally stacks and stacks of books. i will tell you two of the ones that were now studying. they include a book called antiracist baby. there are portions of this book that i find really quite remarkable. one portion of the book says, babies are taught to be racist or antiracist, there is no neutrality. another portion of the book, they recommend the babies confess when being racist. this is a book that is taught at georgetown day school to students in pre-k through second grade. so four through seven years old. do you agree with this book that it's being taught with kids that babies are racist? judge jackson: senator, i do not
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believe that any child should be made to feel as though they are racist or as though they are not valued, are that they are less then, that they are victims or oppressors. i don't believe in any of that, but what i will say is that when you asked me whether or not this was taught in schools, critical race theory, my understanding is that critical race theory as an academic theory is taught in law school and, to the extent that you are asking the question, i understood you to be addressing public schools. georgetown day school, just like the religious school that justice barrett was on the board of, is a private school. sen. cruz: so you agree critical
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race theory is taught at georgetown day school? judge jackson: i don't know, the board does not control the curriculum, the board does not focus on that, that's not what we do as board members. so i'm actually not sure. sen. cruz: i will note that the board is chaired by your college roommate who introduced you yesterday. the two of you serve on the board together. another book that is on the summer reading for third through fifth grade is a book called "stamford kids." -- "stamp for kids." i read the entirety of the book and it is is an astonishing book. on page 33 it asked the question, can we send white people back to europe. that's on 33. that's what has been given to eight and nine-year-olds. it also, on page 115, says the idea that we should pretend not to see racism is connected to the idea that we should pretend not to see color. it's called colorblindness.
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skipping ahead, here's what's wrong with this, it's ridiculous, skin color is something we all absolutely see. skipping ahead, to pretend not to see colors pretty convenient if you don't actually want to stamp out racism in the first place. what this book argues for is the exact opposite of what dr. king spoke about on the floor of the lincoln memorial. are you comfortable with these ideas being taught to children as young as four, in respect to the first book, and a and nine in respect to the second book? judge jackson: senator, i have not reviewed any of those books, any of those ideas, they don't come up in my work as a judge. which i am respectfully here to address. in my work as a judge, which is evidenced from my mere decade on the bench -- sen. cruz: let's go back to your work as a judge.
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as was noted in the first slide, you discuss sentencing as being related to critical race theory. earlier there has been back and forth with democratic senators trying to address your sentencing patterns as a concern to child pornography. i will confess, judge jackson -- look, as i listen to your testimony i believe you are someone who is compassionate, i believe you care for children, obviously your children and other children. what i also see a record of activism and advocacy as a concern sexual predators that stems back decades and is concerning. he wrote your note on the harvard log review on sex crimes. your note is your major academic work on while review and yours is entitled prevention versus punk -- punishment and the
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restraint of released sex offenders. in it, you argue, "a recent span of legislation purports to regulate released sex offenders by requiring to -- requiring them to register with law officials. undergo dna testing and submit to civil commitment for an indefinite term. although many courts and commentators herald this as valiant regulators, others reject them as punitive enactments that violate the rights of individuals have already been sanctioned for their crimes. " the constitutionality of sex offender statutes depends on their characterization is essentially preventative, rather than punitive. and you go on to explain that if they are viewed as punitive, they are unconstitutional. if they are viewed as preventative, they are not. and throughout the course of your notes, they argue they should be viewed as punitive, and therefore, unconstitutional.
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in the second of the last page you go through each of those four categories. you say requirements that sex offenders register may or may not be unconstitutional, depending on whether and which sex offenders have no privacy right to registration of information or blood samples. you suggest it may or may not be constitutional. you raise doubts about it. you raise significant doubts about community notification, and you heavily suggest that civil commitment for sexual predators is unconstitutional. you still agree with the sentiments you have expressed in your law school note? judge jackson: respectfully, senator, those are not the sentiments i expressed in my law school note. my law school note was about sex offender registration laws, which at the time, relatively new. as you know, from our time in law school, one of the things
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that law school students do is look for a new development in the law, and they try to analyze them. that's something that makes for good fodder for a law school note. my notes, which came out in 1996, which, shortly after, there were new megan's laws. in the point that i was making was not that the laws were bad, that the laws were wrong, i was trying to assess something that is fundamental in terms of the characterization of the laws. i didn't say there were unconstitutional one way or the other. what i was trying to assess was how they are characterized. some courts would look at those laws and call them preventative, and that has a certain set of consequences. some courts would call them punitive, and that has a certain
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set of consequences. and what i was trying to do was figure out how to make the determination, whether they were punitive or preventative. sen. cruz: your note argued that they were punitive. and i would note that there had been some on the bench that had advocated that. the supreme court in 1997 decided a case called kansas versus hendrickson widget it upheld kansas civil commitment it's. that was a 5-4 vote. this is a question that has been close at the supreme court. i would know, beyond that, in terms of the prevalence of these statutes, all 50 states and d.c. have registry requirements, 47 states have community notification requirements. all 50 states have dna or blood -- blood banks for sex offender requirements. 20 of the states, the federal government and d.c. have laws that allow for the indefinite detention of sex offenders. in the state of texas the state
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court of appeals relies on the same sort of reasoning you advocating your notes, struck down texas structurally violent predator commitment law. at the time i was the solicitor general of texas and i argue that appeal in the texas supreme court. the texas supreme court unanimously reversed the court of appeals and upheld our statute. if the views you advocated in law school prevailed, civil commitment laws across the country would be struck down, releasing sexual predators, and under the argument community notification and dna bank laws could well be struck down as well. is that an outcome that should concern people? judge jackson: senator, my note was in advocating for the striking down of those laws. my note was trying to identify criteria that i thought could be applied consistently to
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determine whether the laws were punitive or preventative. sen. cruz: you argued they were punitive and you further say if they are punitive they are unconstitutional. judge jackson: i was looking out for different kinds of laws and not all of them did i say there were punitive. sen. hawley: let's take civil -- sen. cruz: let's take civil commitment laws. if you take them, ucla school of law williams institute estimates more than 6003 hundred sex offenders are detained in civil commitment programs. if the view you advocated prevailed, those 6000 300 sex offenders would be released to the public. is that an outcome that should be concerned? judge jackson: senator, and law school, when i was writing a note, i was looking at a brand-new set of laws that had not previously been enacted in any jurisdiction, they were new. i was assessing, at the time, as law school students do, what
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criteria i thought might be used by courts to make a determination in the future as to whether or not they should be treated as punitive, and therefore, not unconstitutional, but as therefore, ones that carry with them certain rights versus -- excuse me, preventative. sen. cruz: judge jackson, you have pointed that these reviews and law school are illicit. i will recognize that all of us, when we were students, may have used that as time immaturity passes on we may change. what troubles me is that this was not just a law school view, it is when they're continued. when you are vice chair of the sentencing committee to express contest you express significance in -- significant concerns in the white house argued it was taken out of context. you said, yes, i want to ask you about the means by which we could distinguish more or less serious offenders.
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all of you touched on that. he talked about going from singular to one-on-one to group experience. i'm wondering if there is some sort of inevitable and natural progression from one stage to another such that you can say that the least serious offenders are in the singular experience stage? in looking at the other testimony that other people will have later in the day, i was surprised at some of the testimony, with respect to the motivation of offenders, and we are talking about child pornography, there are people that get involved with this kind of activity who may not be pedophiles and may not be necessarily interested in to child pornography, but have other motivations with respect to the use of technology, and being in that group, and here are lots of reasons why perhaps people might engage. i'm wondering whether you could say that there could be a less serious child pornography offender who is engaging in a tyf type of conduct in the group experience level because their motivation is the challenge, or to use the technology, they are
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very sophisticated technology -- technologically. they aren't that interested in the child pornography piece of it? i find that a pretty remarkable argument that people in possession of child pornography are not actually interested in the child born, they are not pedophiles, they are just interested into knology. i want to provide the whole quote because the white house as portions of this were used out of context, this is your entire quote. do you agree with that sentiment that there is some meaningful population of people who have child pornography, but are not, in fact, pedophiles or getting satisfaction from it? judge jackson: thank you, senator for allowing me to address what appears to be a question that i was asking in the context of a hearing on child pornography. you have provided the entire quote, and it looks as though i
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was asking that of someone, not taking that position. in the position that i have taken, and all of my sentencings involving child pornography offenders is to ensure that, despite the attitude in view of many of the offenders who came before me when i was a trial judge, that they were just lookers, that they were really harming anyone, that they were curating their collections and they never touched a child, i made sure that they understood that not withstanding their collecting behaviors, that they were causing significant harm. sen. cruz: judge jackson, you raise your actual sentencing, and i think that's productive. let's take a look at your actual sentencing. you've had 10 different cases involving child pornography. these are the cases that there are two.
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u.s. versus cam for which the government did not make a recommendation. you said, earlier when chairman derman was trying to preempt this line of attack you said it's a sickening and egregious crime. i very much agree with. you said the guidelines lead to extreme departures. ok. let's look at what the prosecutors are asking for. i would note that this was in the district of columbia where prosecutors are more liberal than any prosecutors in the country. in every case in which the united states versus hough, there was a mandatory statutory minimum of 60 months and you and posted because you had no discretion. in united states versus nickerson there was a mutual agreement of 120 months and that's what you imposed. in every other case, the united states the prosecutor asked for 78 to 97 months, you imposed 28 months. 28 months is a 64% reduction.
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united states versus cooper the prosecutor asked for 72 months. you imposed 60 months. that was a 17% reduction. in united states versus -- the prosecutor asked for 70 months and you imposed 60. that was a 14% reduction. in united states versus hawkins, the prosecutor asked for 24 months, you imposed three months. that was an 88% reduction. in united states versus savage, the prosecutor asked for 49 months and you imposed 37. that was a 24% reduction. in the united states versus stewart the prosecutor asked for 97 months and you imposed 57. that was a 41% reduction. every single case, 100% of them,
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when prosecutors came before you were child pornography cases, you sentenced the defenders to substantially below, not just the guidelines, which are higher, but what the prosecutor asked for, on average of these cases, 47.2% less. you said you made sure the voice of the children was heard. do you believe in a case like united states versus hawkins or the prosecutor asked for 24 months and you sentenced the offender to only three months, do you believe the voice of the children is heard when 100% of the time you are sentencing those in possession of child pornography to far below what the prosecutor is asking for? judge jackson: yes, senator, i do. sen. cruz: could you ask wayne how? judge jackson: i will. a couple of observations, one, is that your chart does not include all of the factors that congress has told judges to
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consider, including the probation office's recommendation in these cases. sen. cruz: we don't have those probations, the committee has not been given the recommendation. we would welcome them. stir chairman, i would love to see them. sen. cruz: the second thing i would -- judge jackson: the second thing i would say is that i take these cases very seriously as a mother, as someone who, as a judge, has to review the actual evidence in these cases and, based on congress's requirements, take into account not only the sentencing guidelines, not only the recommendations of the parties, but also things like the stories of the victims. also things like, the nature and circumstances of the offense in the history and characteristics
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of the defendant. congress is the body that tells sentencing judges what they are supposed to look at. and, congress has said that a judge is not playing a numbers game. the judge is looking at all of these different factors in making a determination in every case based on a number of different considerations. and in every case, i did my duty to hold the defendants accountable in light of the evidence in the information that was presented to me. sen. cruz: and 100% of the cases was the evidence less than what prosecutors asked for? judge jackson: the evidence in these cases are egregious. the evidence in these cases are among the worst that i have seen, and yet, as congress directs, judges don't just
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calculate the guidelines and stop. judges have to take into account the personal circumstances of the defendant, because that's a requirement of congress. judges have to consider things like the victims, and when i was talking about making sure the victims circumstances are heard, it was about my sentencing practices. sen. cruz: thank you, mr. chairman. quick three more senators will get to question the nominee. editors kennedy, padilla and black turn. day three of the hearing for judge jackson is tomorrow. on thursday, members of the american bar association and others will testify. democrats say they would like to wrap up the process by the april 11 easter recess. expecting the break to end here shortly.
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[indistinct conversations]
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>> the judiciary committee will resume in the questioning is to senator john of louisiana. sen. kennedy: thank you mr. chairman, judge. i have enjoyed listening to you today. i find you to be very intelligent and very articulate. i'm still a little uncertain about how you think, how you approach cases, deciding cases, and we will talk about that in a moment. i'm not going to ask you, nor should i, how you would decide a case. i'm not can ask you, nor should i, whether you think a particular precedent is a good
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precedent or not. but i'm going to talk to you about the law. but first, you don't support efforts to delegitimize the united states supreme court, do you? judge jackson: senator, i have nothing but esteem for the united states supreme court, where my hopefully future colleagues on the court in the works that the court does. sen. kennedy: cannot we agree that the calls to pack the court delegitimize the court? judge jackson: senator, it would not be appropriate for me, in my view, to comment on calls to pack the courts, as you say, to
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increase the number, to do any structural changes, those are policy determinations for congress. what the consequences of those policy considerations are for congress, i'm just looking forward to working with the brilliant people who are there at whatever congress decides, if i'm confirmed. sen. kennedy: the calls to pack the court don't legitimize the court, do they? judge jackson: senator, i think that would be for you to decide. sen. kennedy: i'm asking your opinion. judge jackson: respectfully, senator, i'm not in a position to give my opinion on issues that are policy issues concerning the courts and it's not something that a judge would have to consider or should consider, in my view.
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sen. kennedy: you are a citizen. judge jackson: i'm. sen. kennedy: as best i can tell, a very good one. i don't understand why you won't weigh in on this issue. tell me why you always and on this issue? judge jackson: senator, i feel so strongly about ensuring that judges remain out of political debates. and this is something that is being debated, it is something that other nominees, justice barrett was asked about the same sort of thing, and also declined to give her opinion. i think that was the right way to handle this particular issue. sen. kennedy: so you think judge barrett was a to judge -- to dodge the question? sen. kennedy: i think that each judge has to make a determination when asked about whether they would like to speak to issues.
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i know that i am not comfortable . in part because i am so committed to making sure that there is confidence in me, in terms of public confidence in my ability to stay in my life -- in my lane, my ability to not speak to contentious political issues. sen. kennedy: you have an opinion though, don't you? judge jackson: senator, any opinion that i would have is not something that would ever come up. in my work as a judge, something i would ever rely on. this is a political issue for congress. sen. kennedy: but do you have an opinion, judge? judge jackson: not a strongly held opinion. judge jackson: but -- sen. kennedy: but you have an opinion? judge jackson: i haven't really
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thought about it, but i hear the arguments on both sides and i understand it to be a political issue. sen. kennedy: judge, you are very intelligent and you are very articulate, and i know you are very well-informed. you are telling me you don't have an opinion about packing the united states supreme court? judge jackson: senator, i have opinions about a lot of things, i don't have an opinion that i think is appropriate to share. i worked very hard to set aside my opinions when i'm thinking about cases, which is the work of a judge. so, this particular issue is one that is very contentious, as you say. when that's in the province of congress, and one that i think it's not appropriate for me to comment on. sen. kennedy: i understand that. but i think it would tell us a
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lot about you if you would answer the question. i'm a little confused about your answer earlier, and it's probably more my fault than yours. do you have an opinion about whether these efforts to pack the united states supreme court delegitimize the court? do you have an opinion? judge jackson: senator, i have an opinion about the effort, it's not an opinion that i think is appropriate for me to share. therefore, i don't have anything further to add. sen. kennedy: so you do have an opinion, but you don't want to share it? judge jackson: i don't think it's appropriate for me as a nominee to comment on a political matter that's in the province of congress? sen. kennedy: will deciding to
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join the united states supreme court, if you are affirmed, would it make a difference to you whether you are one of nine or one of 28? that impacts the judiciary, that involves the judiciary. judge jackson: senator, it certainly involves the judiciary, i would be thrilled to be one of however many congress thought it appropriate to put on the court. sen. kennedy: ok. judge jackson: so you would be ok if it was 28? sen. kennedy: if that was congress -- judge jackson: if that was congress determination, yes, the congress makes decisions like that. sen. kennedy: ok. sen. kennedy: a couple of my colleagues ask you about the supreme court overturning precedent.
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now, it doesn't happen every other thursday, but it's not -- what's the word i'm searching for, judge? it's not extraordinary that the supreme court overturns precedent, is it? i mean it happens, i wouldn't say a lot, but it's not once every 50 years, mi correct? judge jackson: you are correct that it's more frequent than once every 50 years, for sure. sen. kennedy: so what happens? judge jackson: yes. sen. kennedy: you talked earlier briefly about the different factors that the court considers . hit that and just give me a couple. judge jackson: weathered the decision is egregiously wrong, whether there has been reliance on the decision that is being revisited, whether the decision is workable or unworkable, the
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one they are looking at. whether the facts are new facts that have come to light, or the facts -- the circumstances are such that there is now a new understanding of the prior facts , and whether the case law in the area has shifted. sen. kennedy: in fact, those are the factors that the supreme court listed three years ago and janice, are they not? judge jackson: those are the factors. i don't have the janice opinion in front of me, but those are the factors for the court. sen. kennedy: janice overruled, i think this senator talked about it, janice overruled -- dealing with whether labor unions can require non-members to pay dues. do you remember that? judge jackson: yes. sen. kennedy: is the age of a
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case a factor in whether the supreme court won't rule a precedent? judge jackson: i think age relates to the reliance factor. i think the longer an opinion has been in effect, the court has considered that to be relevant to its determination of reliance. sen. kennedy: but sometimes the court looks at it not just in terms of reliance, they look at it from the other side of the age issue, and that is that there may be facts, circumstances and science have changed, do they not? judge jackson: i believe that is part of the changed circumstances factor. sen. kennedy: so, the supreme court is more likely to overturn a case, which would not be that extraordinary, if the precedent or 49 years old as opposed to 4.9 years old? judge jackson: i'm sorry, can you repeat the question? sen. kennedy: you said that the
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older the case is, one could make an argument that the reliance interest would be great. but you also said, i think i don't need to put words in your mouth, but the older that kc is, the more facts and circumstances and science could change, the so that would argue in favor of overruling it because of a change in circumstances. judge jackson: it might. it might. these are all different circumstances that the court could consider under this multifactor test. sen. kennedy: all things being equal to -- equaled, let's say decisions being 39 years old versus three years old, like janice, the older decision is more likely to be overturned? your experience? judge jackson: i don't know that i could make that prediction. i'm just saying that one of the factors, the reliance factor, the age of the opinion and how
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long people have been relying on it can be relevant to -- it is one of the factors that the court considers. sen. kennedy: ok. let me jump gears. i took some notes. you talked earlier about how you decide cases, i'm going to summarize this. you said you clear your mind of any bias, you read everything, you read the briefs in the record, then you apply them all. that's your methodology. you said you are not an activist judge, am i right? judge jackson: yes. sen. kennedy: you said judges are not politicians. judge jackson: that is true. sen. kennedy: and judges should stay in their lane? judge jackson: yes, sir. sen. kennedy: tell me what you mean by stay in their lane? judge jackson: what i mean is that, in our system of government under the constitution, we have a separation of powers. each branch has their own sphere
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of responsibility to say stay in your lane is the shorthand that i'm using for indicating that judges should not be policymakers. that those responsibilities are less to the elected branches -- left to the elected branches, and that judges are to interpret the law, not make the law, and i use it to refer to the part of my methodology that is mindful of the constraints on judicial authority. sen. kennedy: ok. so let me ask you, we can go to the constitution, let's say the bill of rights, and read about our explicit rates, religious freedom, our right not to be on
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regional be -- unreasonably searched or seized, freedom speech, they write that, that's why they call it an explicit. but we have a bunch of unenumerated rights. mi correct? judge jackson: the court has determined there are certain rights related to individual aton ami that are explicit in the concept of ordered liberty or deeply rooted in our nations history or tradition. sen. kennedy: but they are unenumerated? judge jackson: yes. sen. kennedy: should these unenumerated rights be decided by the people and representatives or by the
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federal judiciary's? judge jackson: well, senator, the supreme court has interpreted the 14th amendment to have a substantive component. i'm not in a position to critique the court in terms of its precedent. that is the precedent of the supreme court. sen. kennedy: let me ask you this, what is a fundamental right? judge jackson: the court has interpreted the 14th amendments due process clause to include a substantive component and not just a procedural component. meaning, the 14th amendment guarantees due process and the court has interpreted it to mean , that with respect to certain
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rights, individual rights concerning intimacy, certain things like the right to contraception, the right to child rearing, there was a case of the supreme court that talked about making decisions for children in terms of visitation with respects to conflict of grandparents, marriage. these sorts of rights the court has found our implicit and ordered liberty or deeply worded in our nations history tradition. sen. kennedy: the right to assisted suicide, is that one of those enumerated or unenumerated rights? judge jackson: i believe the
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court found that it was not. sen. kennedy: which body do you think is better able to make that decision, the congress or the federal judiciary? sen. kennedy: well, senator, the supreme court has interpreted the constitution, it in this supreme court has the authority, under our constitutional system, to interpret the law, and they made the determination that the constitution includes those unenumerated rights. sen. kennedy: here's the thing, judge. maybe a better example, a hot topic today. the right of a transgender woman to compete in women's sports. do you think the people ought to get to decide that through
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congress, or the judge can just find it as an unenumerated right of the constitution? judge jackson: well, senator, that topic that you raised is something that is, as you say, a hot topic today, and could certainly be litigated. i'm not in a position to say more about whether or not it's actually one of the unenumerated rights. sen. kennedy: i don't want to ask you how you would rule, but would you have a problem saying ok if it is litigated, saying, this is a political question, i'm staying in my lane, congress needs to decide this case, the people need to decide that through their elected representatives, without be appropriate? judge jackson: respectfully, senator, that is a decision, in
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other words, you say you are not asking me to decide it, but the determination about whether or not something is a political question or whether or not someone has or has not jurisdiction is in issue for judges. so i'm not able to speak to it. sen. kennedy: here's the thing about the fundamental rights. i want to ask you about the definition of it. these are unenumerated rights now, i'm not talking about right to free speech and freedom of religion. the court has said repeatedly that there is no test for an unenumerated fundamental right. that the determination has not been reduced, and my right? judge jackson: they have given those standards in the cases in which they have been evaluated. sen. kennedy: in some cases, sometimes the court talks about
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these unenumerated fundamental rights have to be deeply rooted in the nation history and traditions. sometimes the court says, they change the language, these unenumerated rights, like the rights to assisted suicide we talked about, it's a potential unenumerated right, the right has to be implicit in the concept in order of liberty. but in this case -- in this opinion, i think justice kennedy wrote that opinion and he didn't write. he cited with approval on the dissent and the justice said, there is no formula here. the justice always said, you have to go case-by-case. can you understand why some americans go, wait a minute, are
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justices interpreting the constitution, or are they just deciding a right when they get five votes and it's just a moral conviction? judge jackson: yes, senator, i do understand. sen. kennedy: ok, when you talk about judicial restraint, where does the restraint start? let's take the ninth amendment, ok. what's it say, i know you know, because you talked about it earlier. judge jackson: it says -- it indicates that there are rights that -- that the fact that there are some enumerated rights in the constitution doesn't mean that there aren't others. sen. kennedy: how are we supposed to determine what others there are? judge jackson: i think the supreme court has not found any others coming from that particular constitutional
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provision. sen. kennedy: could they? judge jackson: i can't speak to that, senator. sen. kennedy: it's possible. if they get five votes, right? judge jackson: anytime the supreme court has five votes, than they have a majority for whatever opinion they determine. sen. kennedy: but do you think that would be a prudent course of action to start creating fundamental rights through the ninth amendment, unenumerated now, without consulting congress? judge jackson: senator, i can't speak to a hypothetical about whether or not it would be a prudent course of action for the supreme court to hold that there were other rights in the ninth amendment. sen. kennedy: the reason i'm
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asking is you talked a lot today about judicial restraint. and that is kind of like being for children and prosperity. or all for children and sen. kennedy: but the rubber get down to what does that mean? judge jackson: what it has meant for me is what you have seen in my opinions and the way that i have approached issues that have informed me in my fidelity to the restraint that exists in the law in terms of the exercise of judicial authority. that adherence to president, for example, is something that i do and even in cases as you heard me discussed earlier in which they are not binding precedent. i find that the court needs to take into consideration what has
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previously been determined and not be a policymaker in my decisions. sen. kennedy: ok. here is what is bothering me -- that sounds pejorative. please don't take this the wrong way. how do we know -- i'm not saying you would do it but how do we know that since i cannot seem to flesh out this judicial restraint, how do we know that if you get on the court, you will not say, well, you know, congress cannot get anything done, and there are all these issues we need to address. i think the united states supreme court ought to create all these rights in the ninth amendment. what would you say to that? if somebody made the allegation. judge jackson: well, senator, i
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think that i have a record as a judge in terms of having been given responsibility, having looked at cases, having decided issues and my record demonstrates how i handle cases. i am not in a position to hypothesize a circumstance in which a case appeared that raised a question about the recognition of and unenumerated right and what i would say under those circumstances that we could find such a right because that is a hypothetical. i decide cases and controversies that come before me because i'm a nominee and i cannot speak to hypothetical scenarios about how i might rule in the future with respect to cases. sen. kennedy: time goes fast.
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let me ask you one other question. this business of having unenumerated rights through substantive due process, there is no textual basis for that. the court just started doing it, ok. i'm not asking whether you think it was good or bad because it clear to me you don't want to share your thoughts on that and i get it. i would feel better if you would but i get it. don't you think the fact that our founders included a way to amend the constitution is a testament to the fact that they were saying here are your rights. we are writing them down. we can go build a bill of rights and read them. we put in a way to amend the constitution. judge jackson: i do understand that argument. there are people who argue that.
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the supreme court has determined that the due process clause include a substantive component. i understand the critiques of that view. sen. kennedy: i will try and get in tomorrow. when do slides begin in your opinion? -- when does life begin in your opinion? judge jackson: sir, i don't know. i don't know. sen. kennedy: do you have a belief? judge jackson: i have personal religious and otherwise beliefs that have nothing to do with the law in terms of when life begins. sen. kennedy: do you have a personal belief about when life begins? religious belief? judge jackson: that i set aside when i'm ruling on cases. sen. kennedy: when does equal
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protection of the laws attach to a human being? judge jackson: senator, i believe this is the supreme court. actually don't know the answer to that question. i'm sorry. i don't. sen. kennedy: ok. you are familiar with the warrant reform and i know -- judge jackson: yes. sen. kennedy: what if louisiana said we don't want to file the requirement? would that be illegal? judge jackson: are you positing a statute of louisiana that we are not following? well, senator, i'm thinking about all of the potential legal
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arguments that could be made. i cannot answer the hypothetical about whether or not it would be lawful or unlawful. sen. kennedy: can you think of any instance where a state could say we are not going to follow the warrant requirement? we are going to write our own warrant requirement? judge jackson: i never heard of that happening. sen. kennedy: what of article one, section five of the louisiana constitution is unreasonable searches and seizures? we are not going to follow the federal interpretation. we are going to make it stricter under the state constitution. judge jackson: the state can also -- sen. kennedy: under the state constitution, we will say a warrant is required in every instance. do not give me this stuff about plainview and hot pursuit. you serve somebody, you better go stop and get a warrant. i'm not saying louisiana would
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do that and i'm not saying they should or should not. they can do that, can't they, under their own state constitution? judge jackson: they can provide more protection than the federal government. sen. kennedy: how can they get away with that under the supremacy clause? you got to go fast. judge jackson: how can they get away with providing more protection to people? sen. kennedy: under the supremacy clause. judge jackson: because it would depend on whether or not it conflicted with federal law. it does not conflict i think if the state provides more protection. sen. kennedy: the adequate and independent state factor, correct? judge jackson: yes. sen. kennedy: i'm over but only about 22 seconds so i'm going to land this plane and we will take off again tomorrow. judge jackson: thank you. >> thank you, senator kennedy. senator padilla. senator padilla: thank you, mr.
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chairman. judge jackson. how are you doing? it has been a long day. judge jackson: it has. i understand it is your birthday. >> i will cut to the chase on my first question. [laughter] i have studied your record. we had the opportunity to meet in the office, spent some time there. listening pretty closely to today's hearings. my first question, may be highest stakes. what would you say to a member of this committee who is sitting here like you for 12 hours now? on his or her birthday? judge jackson: i would say happy birthday. [laughter] sen. padilla: i actually -- i only ask that question half jokingly because i was moved by your opening statement yesterday as well, especially moved by my
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colleague, reverend booker here a little while ago. he uplifted your commentary about the struggle you clearly feel and that i share about being a working parent. cannot think to myself how i have had to grow and as we remind each other of this pretty regularly, trying to give good advice for children. we are trying to raise three gentlemen. it's not always perfect but we give them the advice of, you know, try your best to be your best. we are not expecting perfection. sometimes, parents need to remind themselves of that, too. cannot expect perfection. we have to try our best to be our best. it has also dawned on me that we have been here for 12 hours. there is a fundamental question
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that has been asked. they have given thoughtful answers throughout the day but fundamentally, what this hearing is today is a job interview. it is a very public and thorough job interview as it should be. you could potentially serve on the supreme court for decades. helping shape the direction of american law and american life and lasting ways. it's appropriate over the course of this interview and you should be asked some in-depth questions about your background, about your experiences and your approach to the law. before i get to some of those questions i have, the first question i have for you is why would you want this job? now with the added flavor of why would you want this job?
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you have a great one now. on a daily basis, we are trying to find that right balance. judge jackson: thank you, senator. i have spoken many times about the fact that i came to love the law starting as early as four years old, watching my dad study when he went back to law school when i was a child. i honestly never thought there was anything else that one could really do because i was so enamored of my father and so proud of his decision to follow his dream after i was born. so if you are a lawyer and you believe in public service, which
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was a core family value for my family, then becoming a judge is certainly an option that one pursues and of course being on the supreme court is the capstone of a life in public service and i would be so honored to have the opportunity to use my time and talents in this way. sen. padilla: thank you for that. that's some of the more specific questions. i have been listening closely throughout the day. your knowledge of the law, you're even temperament, your charm, and clearly your endurance is impressive. i've knowledge at times this hearing has been a little frustrating. not because of your answers but
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i point to the process itself. there's probably a whole lot of questions that everybody watching -- your answers to what the questions you cannot directly answer, questions like a woman's right to choose, questions like the second amendment, questions like expanding the supreme court. to be clear, this is not a criticism. let me explain. when you are asked a question that comes close to asking your views on a pending case or on an issue that may come before you, you declined to answer as to not prejudge the issue and i will remind the committee i believe that has been the approach taken by every supreme court nominee for the last three decades. for the benefit of the people watching at home, can you explain why you and other judicial nominees have followed
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this approach? why is it important? judge jackson: yes, thank you, senator. the approach is consistent with the requirement of judicial independence with the duty to have and keep an open mind when you are considering cases. judges, unlike policymakers, are not supposed to be forming opinions in the ether. judges are supposed to be waiting until a dispute is presented that they can hear in the context of the case and was an open mind. receiving the arguments made in the context of that case. applying the law and making a decision. the concern is that if you are
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engaged in a public forum like this and you start talking about issues that are being litigated in the courts, the concern is that it will erode public confidence in your ability to be open minded, hear and consider only the facts and circumstances in the cases that are presented. people might think you are ruling based on conversations that you had with senator kennedy. discussions that you have with you. judges tend to not speak publicly about issues that are being litigated and especially judges being considered for the supreme court. at the end of the day, a lot of these issues will come before that forum and you want people to know that you have an open mind, that you have not prejudged any issue and that you are waiting and staying in your
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appropriate constitutional lane. sen. padilla: confidence in the judiciary and justice system. maybe as a segue, want to raise some concern about confidence in the electoral process. discuss for imminent democracy and voting rights. approach this conversation not as a lawyer but as a former elections official. for six years, i served as california's chief election officer. my objective during that time is to ensure the elections are safe and secure but also to help facilitate the participation of as many eligible californians as possible. as we are guided by -- as we are guided to do by the national voter registration act.
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i believe in the rights of every eligible voter to be able to register to vote, cast their ballot, have their voice heard in our democracy. you can appreciate my outrage when i watched the supreme court's. they played a role in dismantling the crowning achievements of our democracy. the federal voting rights act of 1965. over the course of five decades, it protected voters from unnecessary opticals -- obstacles and barriers. the voting rights act was authorized and reauthorized five times with overwhelming bipartisan support. the voting rights act helped increase blackwater participation in the south in the post-jim crow era and in states like arizona, texas, california and others.
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latino voters have benefited from the voter protections. across the country, native voters, asian-american voters, and members of language minority communities have all achieved greater access to the polls because of the ex-prohibition on the determination of race or other minority status. they guided the teeth of the voting rights act in shelby county versus holder. they struck down the provision with a known history of voter disenfranchisement to prove that any changes to their voting laws would not harm voters. last year, the supreme court drastically restricted the reach of section two which prohibits discrimination in voting on the basis of race. i find it hard to see the outcome of any of this as
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anything but counter to the spirit of the movement that led to the voting rights act. not in any specific case. earlier in this hearing, you acknowledged that the supreme court's precedents that the right to vote is fundamental and must be protected has been acknowledged. so can you just share for a couple of minutes what you believe the responsibility of the supreme court might be in protecting this fundamental right to vote and by extension our democracy? >> thank you, senator. the right to vote is protected by our constitution. the constitution makes clear that no one is to be discriminated against in terms of their exercise of voting and
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the congress has used its constitutional authority to enact many statutes that are aimed at voting protection. there are also laws that relate to ensuring that there is not only voting access but ensuring that there isn't fraud in terms of voting. these concerns are embodied by various laws and provisions and there are disputes at times over the concerns and the balances that are being made across the
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country relating to the exercise of voting and those disputes come to court and then eventually to the supreme court. that interprets the laws that pertain to the fundamental right to vote which as you say, the supreme court has acknowledged is a fundamental right. sen. padilla: thank you. on a different topic not unique to california but proud that california is home to the largest native american population in the country. more than one in 10 native americans call california home. california is home to 109 federally recognized tribes who have a nation to nation relationship with the united states of america. as a senator from california, i believe that respect for tribal sovereignty is paramount. after the nomination, it's part
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of the homework i was doing. a carefully considered -- on tribal issues. for the most part, it seems you have not had to deal with too many cases involving the rights of native peoples or tribes. the cases you had so far, such as mechanic versus jewel -- the cases you have so far dealt with procedure rather than fundamental issues of native and tribal rights. if you are confirmed, i have no doubt you will eventually have to weigh in on major questions related to tribal sovereignty, treaty rights, travel resource preservation and the federal governments trust responsibility . there's already one major case related to indian law on the supreme court's docket for the next term and it deals with the constitutionality of the indian child welfare act of 1976.
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i'm not going to ask you to comment on that case specifically or in a case that may come before you but as a general manager, share what your understanding is of the federal governments legal and moral responsibility and relationship with governments. judge jackson: yes, senator. it is established in the law that the supreme court has established that there is a special trust relationship between indian tribes and the federal government. indian tribes are as a general matter considered to be sovereigns and the relationship is a sovereign to sovereign relationship but it is one in which the federal government had some responsibilities related to
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the indian nation and it is very, very important. care and trust, responsibility, that the federal government has in terms of making sure that the tribes are recognized and cared for in the context of our system. sen. padilla: i look forward to our ongoing conversation on that area of the law as well as i want to now revisit something that has been a theme throughout yesterday's opening statements and a lot of today's questions for our members and that is the general appreciation for diversity, celebrating history, with the potential impact it would be for something like you to join the united states supreme court. -- someone like you to join the united states supreme court. i'm going to take it to another
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level. while judges are certainly the face of the judicial branch, their works, as you can appreciate, is significantly supported by the work of -- typically, these clerks are talented young lawyers who spend a year or two working closely with a judge who hires them, who helps them conduct research, research the law and to write the go opinions. the court of appeals and even the supreme court are often the launching pad for a successful legal career. many former clerks are leaders in the profession, they serve as partners, public interest lawyers, public-sector attorneys , and yes, federal judges. seven of the nine current supreme court justices were federal clerks once upon a time. six of the nine justices clerk at the supreme court itself so
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it is no wonder that many law students and recent graduates compete pretty intensely for these coveted positions. like the judiciary itself, the ranks of federal clerks are not particularly diverse. according to a bulletin by the national association of law placement, only 21% of federal clerks from the class of 2019 were people of color. at the supreme court, the national law journal reported in 2017 and indicated that since 2005, only 15% of clerks were people of color and only one third were women. these are unacceptably low figures for what has become a de facto pipeline for federal judges. with such though selection rates
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, minorities and women lawyers are denied early credentials that can be of significant help later in their legal career, creating more avenues to participate is critical to diversifying the legal profession in the long run. would you like to share with the committee your clerkship experience and how effective the trajectory of your career and if you believe the judiciary will be better served by a more diverse pool of law clerks? judge jackson: thank you, senator. i think there's very little question that my law clerks change the trajectory -- they change the trajectory of my career. through that opportunity, i was able to work for three
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extraordinary jurists and got to see what it was like to be a judge and i got to understand how judges think as they evaluate cases which for a young lawyer is an extraordinary training opportunity and you are correct that it was something that is career changing in a lot of ways. i have tried in my time on the bench to do a significant amount of outreach to young people. i go to law schools whenever i am asked. i speak in a lot of places. you heard some of my speeches get referenced. i am often asked to go and i try
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and go every time i am asked because i know how important it is for people to see that people like me are in the judicial branch and for people to hear about clerkships. one thing i often get when i go to law schools is a surprise from some groups and some people about the chance to clerk. they were not even aware that that was something that they can do or should try to do. it has been a part of my practice to go to schools, to reach out to young people, to tell them about clerking, to try to get them to apply to me. if i can. and to show them that this is something that is possible. if i can do it, they can do it. i think it is to the benefit of us all to have as many different
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law students seeking clerkships as possible. sen. padilla: i think they expect more invitations from california law schools, colleges, and high schools in the near future. another theme that has been pretty consistent throughout the day has touched on the right to counsel. you have been asked questions about your work as a public defender. some have criticized you for providing a defense to certain >> he could not afford an attorney. i want to talk to you about this issue but i also don't want to assume everyone watching at home is a criminal law scholar. as the center for california, -- whether it is a tv show, a movie, most people have heard a
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law enforcement officer on a screen while making an arrest recite what we know as the miranda rights. you have the right to remain silent. anything you say can and will be used against you in a court of law. you have the right to an attorney. if you cannot afford an attorney, one will be appointed for you. the miranda rights are not how they -- a hollywood invention. these are for all individuals including those accused of a crime. they come from over half a century's worth of supreme court precedents. judge jackson, while many americans know how critical these rights are to our systems of liberty and justice, not everyone does, so for those who
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may not fully understand, can you reiterate why the constitution protects these fundamental rights? judge jackson: yes, senator. the constitution protects these rights because the constitution is designed to protect liberty. that's one of the values that the framers were focused on when they set up our system of government. the federal government is limited in its powers in part because the framers wanted to preserve liberty, did not want the federal government to encroach on individual freedoms. there is no bigger fear of encroachment than the state governments using their power to
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deprive people of liberty in the context of the criminal justice system. so the constitution says that when the government seeks to deprive someone of liberty because they accuse them of a crime, they have to afford certain rights to the individual. they have to make sure that the person is processed fairly. criminal defense lawyers protect those constitutional rights by assuring that the government is doing what the constitution says. [captions copyright national cable satellite corp. 2021] says the government has -- says what the constitution has to do. it is the criminal defense lawyer who makes the objection to prosecutorial overreach in a case or who makes sure that all of the rights that the framers put into the constitution are being observed
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in actual practice by the government. it's also really important, one of the things that you said, the miranda rights say, if you cannot afford a lawyer, one will be appointed to you. the person who appoints is the court. the court is appointing lawyers for criminal defendants because the judges know that in order to be able to do our jobs, in order to make sure that criminal processes are fair, we have to get arguments not only from the prosecution but also from competent counsel who is making arguments for the defense. so it is the court that appoints lawyers for people who cannot afford them to make sure that justice is being done in the cases that come to court. sen. padilla: just as a follow-up, as much as we hope the process is always fair
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doesn't mean it's understood. i shared earlier today -- you shared your observations from your time as a public defender that many defendants don't always understand what it is exactly that is happening to them. can you explain what the impact of this is on our criminal justice system and how your experience -- there is a need for a constitutional right to counsel through the eyes of the defendant? judge jackson: yes, senator. in my experience, one of the things that is important for our entire system of government is that people are being held accountable if they commit crimes. that's the point of the criminal
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justice system. what i noticed as a federal public defender is that the process of ensuring that there is accountability, there is responsibility, there is rehabilitation is imputed if the people who are in the system are not actually understanding the process. that one of the purposes of punishment, one of the goals of our system is to ensure that consequences are handed down for criminal behavior and then as a result, people stop committing crimes. so the obligation to make sure that people understand what is happening, i have seen aids in that goal. the person who is receiving the punishment is more likely to be able to reflect on their own
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contribution, to be able to realize if they made a mistake that they committed a crime that here are the consequences. this is a horrible thing. not going to do it again if they understand that his justice in our system. if they go through, if they don't understand, if people are not explaining, if they feel they have not been heard in the process, it is my experience that instead they feel better, they feel victimized and are less likely to be rehabilitated in the long run. as a judge, i took that observation and tried to ensure -- not only criminal defendants understood what was happening but understood the harms that they had caused with an eye towards making sure that rehabilitation is happening in the long run as a result of my
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sentences. sen. padilla: thank you. that is part of the comprehensive work we need to do to buttress confidence in the justice system as a result. the criminal justice system is imperfect and too often unfair. talk about the virtues and promises of our criminal justice system, we include the constitutional right to an attorney. just in closing, mr. chair, they talk about the miranda rights and the right to an impartial jury of one's peers, and we talk about the fourth, fifth, and sixth amendments. through the lens of a system as a whole, the work of public defenders is not just the work of defending the accused. it is the work of upholding the fundamental legal principles that make up our bill of rights.
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anybody who may criticize joan jackson -- judge jackson for providing a defense to any individual accused of crime, i suggest the criticism is not of judge jackson but of the constitution itself. listen to you respond to questions now in the last 12 hours. some of your views out of context to try unsuccessfully to paint you as someone you are not. i have been struck by your thoughtfulness, your temperament , and your integrity and responding to these questions. i hope that america is watching today because if they are, they have seen the perfect example of what the temperament of a judge should be, thoughtful, balanced,
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and very patient. thank you, mr. chair. >> thanks, senator padilla. senator blackburn. >> thank you for your time. i made a note earlier that senator blumenthal mentioned that to do this job that you are before us wanting to take on -- smarts and people smarts and i think that is a very appropriate summation. and as we have spent the past few weeks going through your record, getting to know you, reading letters that have come to you, hearing from people -- i looked at it and said, ok, she has been ritually blessed with god-given talent and then she has experiences and education
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and coupling with that, hopes, desires, and a lot of drive that really make you the person that you are. and we have heard from your friends about how you are a friend and you have been a mentor. as one of my friends would say, i bet you feel -- you are the answer lady for a lot of the issues that friends would bring to you. you love your family and they obviously love you. i wish he could see your dad's face. it is wonderful. when you talk about the things that he has taught you, all of that has been repeated time and again in letters for you. it's important that we know this and it's why we continue to ask you about your views on issues.
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because all of that goes into forming who you are and your worldview. and it all is applicable to the job you have done in the past and likewise, the job that you are going to do in the future, and it does have bearing on different issues, and it has been so interesting to me to get text messages from friends at home that are watching this. i have one from a friend from church. she seems really likable but i'm not sure i agree with her on the issues. this is someone who is incredibly pro-life and she is about my age but she is a mom
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and a grandmom. this is a question that is important to her. to look at life. and senator feinstein talked about that with you a little earlier today. you also said today that it would be inappropriate -- inappropriate for you to share your views on issues that may become -- might come before the court like abortion. i would like to go to you on something you said in private practice. you made your views on pro-life, in the pro-life movement, very clear. and in fact, you attacked pro-life women. and this was in a brief that you wrote. you described them, and i'm quoting, "hostile, noisy crowd of in-your-face protesters." and you advocated against a
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woman's first amendment right to express their sincerely held views regarding the sanctity of each individual life. i am a pro-life woman. 79% of the american women support restrictions of some type on abortion. and so, i find it incredibly concerning that someone who was nominated to a position with life tenure on the supreme court holds such a hostile view toward a view that is held as a mainstream belief that every life is worth protecting so how do you justify that incendiary rhetoric against pro-life women?
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judge jackson: thank you, senator. the brief you are referring to was a brief that i filed on behalf of clients who were clients of my law firm. this was i believe in, goodness, 1999 or 2000? maybe 2000 or 2001? sen. blackburn: yeah. judge jackson: i was an associate at a law firm and i had a pellet -- appellate experience and in the context of my law firm, i was asked to work on a brief concerning a buffer zone issue in massachusetts at the time. there were laws protecting women who wanted to enter clinics and
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there was a first amendment question about the degree to which there had to be room around them to enter the clinic. sen. blackburn: i understand all of that. i'm asking about the rhetoric. judge jackson: senator, i drafted a brief along with the partners in my law firm who reviewed it and we filed on behalf of our client. to advance our clients arguments they wanted to make in the case. sen. blackburn: when you go to church, knowing that there are pro-life women there, do you look at them thinking of them in that way, that they are noisy, hostile, in your face? do you think of them? do you think of pro-life women like me that way? judge jackson: senator, that was a statement and a brief made --
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an argument for my client. it is not the way i think of or characterize people. sen. blackburn: thank you for the clarification on that because i think even zealous advocacy does not allow that type of rhetoric on a free-speech issue. roe v. wade, let's talk a little bit about that. it has come up a touch today. in my opinion, that was an awful act of judicial activism and it has cost the lives of over 63 million unborn children and nearly 50 years later, the shameful ruling remains binding precedent but the battle is being fought in the courts and as you know and as we discussed when we visited, the supreme court is reconsidering whether the constitution protects the right to an abortion. if you are confirmed, you will be in a position to apply the
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court's decision. whatever that decision is going to be. you talked about following precedent. so do you commit to respecting the court's decision if it rules that roe was wrongly decided and that the issue of abortion should be sent back to the states? judge jackson: senator, whatever the supreme court decides will be the president of the supreme court. it will be worthy of respect in the sense that it is the president and i commit to treating it as i would any other precedent. sen. blackburn: one of the central issues is whether the constitution protects the right to an abortion so let's talk about that.
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can we explain to me on a constitutional basis the court's decision in roe and where is abortion protected in the constitution? judge jackson: senator, abortion is a right that the supreme court has recognized -- it's one of the kinds of rights that is unenumerated. it is in that same category of rights. the supreme court has recognized -- sen. blackburn: the text of the constitution does not mention abortion. judge jackson: that is true. sen. blackburn: that is correct. so you agree that the constitution does not mention the right to an abortion and yet, through one of the most brazen acts of judicial activism, our supreme court created the right through roe v.
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wade. this is why americans -- this is why so many women that i have talked to are really concerned about who sits on the federal bench. we need a justice who will adhere to the text of the constitution. you have talked a little bit about that today as you talked about historical context. and i don't want justices who are going to invent rights out of whole cloth to serve a political interest. let's move on. i want to go to when you were at harvard. plea-bargaining processes. in that piece, you argued that judges have, and i'm quoting, personal hidden agendas that influence how they decide cases. what personal hidden agendas do
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you harbor or do you think other judges harbor? judge jackson: thank you, senator. that line, to the extent it appears in my thesis, was written by someone who had not gone to law school and was senior in college, who has spent a summer an internship making observations in the context of criminal justice internship. it is not a view that i hold. sen. blackburn: what led you to that belief? judge jackson: i'm thinking back. it's been 30 years. the summer before my senior year, i interned at a public defender's office in new york. i was part of a team -- there
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was lawyers and interns on this team and they were handling misdemeanor cases. sen. blackburn: so it was from an internship experience? judge jackson: before i became a lawyer. sen. blackburn: senator cruz was discussing with you something that parents all across the country are worried about. that is the progressive indoctrination of their children and the pushing of critical race theory in the schools. and you told senator cruz that as a board member of the georgetown day school, you did not have any control over what was taught at the school, no control over curriculum, and you were not aware that the school was pushing crt. but i would think that there would have been parents that came to you and said, have you seen these books? are you aware that this is being taught? being on that school board.
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judge jackson: no, senator. sen. blackburn: no one ever mentioned it? judge jackson: georgetown day school is a private school. it's not a public school. sen. blackburn: i'm fully aware. and you mentioned that you said that you meant -- you thought he meant that critical race theory is not being taught in public schools, correct? but we know that is not the case. but we know that crt being pushed in our k-12 schools and i have a letter here, mr. chairman , that the senator and i wrote last year to the national education association on this issue. i would like to submit that to the record because it is relevant to our discussion. >> without objection. sen. blackburn: we had admonished the nea for adopting pro crt materials during the
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annual organizing meeting and proposing to spend $127,000 in teachers dues to combat opponents of crt and there are countless reports of crt being pushed in the public school system. a lot of parents i work with every day, every week, don't have the funds to send their child to a public school, relying on the school systems, the public school systems, and it is important to them to have a supreme court that is going to protect her parental rights to teach her children as parents see fit, to have their children taught. and i will tell you that with georgetown day school, i found it astounding that it teaches kindergartners, five-year-old children and i have got grandchildren.
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they teach them that they can choose their gender. so is this what you were praising when you applauded the -- i'm quoting you -- transformative power of georgetown day schools progressive education? do you agree that our schools should teach children that they can choose their gender? judge jackson: senator, i am not remembering exactly what quote you are referencing, but georgetown day school -- sen. blackburn: it was in a book and you gave the quote. judge jackson: georgetown day school is a private school. sen. blackburn: i'm asking, do you agree that schools should teach children that they can choose their gender? judge jackson: senator, i'm not
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making comments about what schools can teach. sen. blackburn: let me ask you this. the united states versus virginia, the supreme court struck down the admission policy , writing for the majority, justice ginsburg stated, supposed inherent differences are no longer accepted as ground for race or national origin classifications. physical distancing's between men and women, however, are enduring. the two sexes are not fungible. a community made up exclusively of one sex is different from a community composed of both. do you agree with justice ginsburg that there are physical differences between men and women that are enduring? judge jackson: um, senator,
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respectfully, i am not familiar with that particular quote or case, so it's hard for me to comment as to whether or not -- sen. blackburn: i would love to get your opinion on that, and you can submit that. do you interpret justice ginsburg's meaning of men and women as male and female? judge jackson: again, because i do not know the case, i do not know how i interpret it. i would need to read the whole case. sen. blackburn: can you provide a definition for the word woman? judge jackson: can i provide a definition? sen. blackburn: yes. judge jackson: i cannot. sen. blackburn: you cannot? judge jackson: not in this context. i am not a biologist. sen. blackburn: the meaning of the word woman is so unclear and controversial that you cannot give me a definition? judge jackson: in my work as a judge, what i do is i address disputes. if there is a dispute about a
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definition, people make arguments, and i look at the law, and i decide. sen. blackburn: the fact that you cannot give me a straight answer about something as fundamental as what a woman is underscores the dangers of the kind of progressive education that we are hearing about. just last week, an entire generation of young girls watched as our taxpayer-funded institutions permitted a biological man to compete and beat a biological woman in the ncaa swimming championships. what message do you think this sends to girls who aspire to compete and win in sports at the highest levels? judge jackson: senator, i'm not sure what message that sends. if you are asking me about the legal issues related to it,
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those are topics that are being hotly discussed, as you say, and could come to the court. sen. blackburn: i think it tells our girls that their voices don't matter. i think it tells them that they are second-class citizens. and parents want to have a supreme court justice who is committed to preserving parental autonomy and protecting our nation's children. so i -- let's move on. i want to go to the child porn issue. i know we have discussed this today on several different times. what is troublesome to me is your consistent pattern of sentencing these predators below the sentences recommended by the government and the sentencing guidelines. senator cruz, senator hawley,
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have laid out some of these disparities. i know senator blumenthal mentioned the kids online safety act that he and i are working on. you have talked about how horrifying it was to get some of that information as we have held these hearings, that has been horrifying. we have had moms from all over the country call us and tell us their story of how these child abusers -- these pornographers are using technology. that technology has really advanced. unfortunately, we know that online right now
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as a mom and grandmother, this is an issue of tremendous concern. i have grandsons that are 12 and 13. and these are things that concern me, how these people work. i find the discussion that you made, this distinction you made between pedophiles who produced child pornography and those who are only collectors to be one without a difference. you said, and i am quoting you, that it was a mistake to assume
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that child pornography offenders are pedophiles. do you believe that it matters to the children and their parents who suffer abuse, what motivation those abusers had? jen brown jackson -- judge brown jackson: thank you. as you said, these cases are among the most difficult, for judges who have to do with the evidence. judges who like me, our parents and -- senator: do think it matters to the kids and their parents, the motives of the abuser, of the pornographer? judge brown jackson: senator, it does not metric to the victims in these cases what motivation is.
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the quote, i am not sure where it came from. i know that what senator cruz showed me before was questions i was asking in the context of a hearing. senator: i have serious concerns about that. i want to go to your judicial philosophy and the ninth amendment. president biden said he was looking for a judicial nominee with a judicial philosophy that is more of one that suggests that there are unenumerated rights in the constitution, and all the amendments mean something, including the ninth amendment. you told senator to flee -- you told senator denis you did not discuss this statement with president biden, but i want to know whether you agree with it. you share the judicial philosophy president biden is looking for? senator kennedy tried to walk through this with you.
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do you believe the ninth amendment is a source of unenumerated rights? judge brown jackson: senator, the supreme court has not found any unenumerated rights that derive from the ninth amendment. so, that is not the president of the court and there are not any rights that have been established under that provision of the constitution. senator: white house chief of staff ron klain has written the supreme court should intervene whenever the nation's conscience and laws need a jolt in a progressive direction. presumably, that is what he and his boss, president biden, expect the justice to do. so, do you believe the role of the court is to intervene whenever we need a jolt in a progressive direction? and what you do that through the unenumerated rights? would you do it on issues like
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abortion? or any other issue? judge brown jackson: the role of the judges to decide cases and that judge is -- role of the judge is to decide cases based on the law, and mind of the requirement to rule impartially and remain in consideration only of the law and its constraints under the constitution. senator: a lot of special interest groups have come out in support of your nomination. one is demand justice. they are a progressive group that has launched a million-dollar ad buy to push your confirmation. demand justice is pushing for radical changes to the structure of our country, including a demand that democrats pack the supreme court.
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one of demand justice's board members has urged senate democrats to add 10 more justices to the court. it is clear that demand justice believes that, if the issue of court packing were to come before you on the supreme court, you would rue in their favor -- you would rule in their favor. are they wrong to believe that you would rule in their favor? judge brown jackson: it is very unlikely that the issue of court packing would come before the supreme court. that question is the province of congress. it is a political question. senator: ok. let's see. i'm going to follow up on this make the road new york issue that has come up today. congress granted dhs sole and unreviewable discretion to determine which illegal
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immigrants should be deported. this means dhs's decision was unreviewable by a federal judge and any attempt to challenge dhs's decision should have been dismissed by the court. and yet you did the very opposite, you didn't dismiss it. you construed the law to permit a judicial challenge to dhs's immigration decision despite the plain language of the statute. the d.c. circuit judge use it reversed you where you -- the d.c. circuit judge use it on reversed you. it question how you could have come to any other conclusion based on the text of the statute. i would like to know what was ambiguous about the immigration
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law that we enacted, and we explicitly stated that dhs's decision was unreviewable. what more could we possibly have said or made clear that you were not authorized to review dhs's decision? judge brown jackson: thank you. when congress strips the court of jurisdiction, congress and many cases does so explicitly. it says something other than sole and unreviewable. it says things like no court shall hear, there is no jurisdiction to consider, there are ways that congress clarifies that judges have no authority or no jurisdiction to hear a particular case.
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the d.c. circuit judge jurisdiction with respect to this statute and this dispute and determined that the court did have jurisdiction. in the question was whether there was a cause of action to proceed. what i determined in looking at the statutes at issue in this particular case is that sole and unreviewable meant dhs had the sole power to make a decision about -- senator: mike, is running out -- my time is running out and they want to be respectful of getting you out a few on time tonight. this is the kind of judicial activism that really concerns tennesseans. these issues i have been through with you today, the statements,
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your statements that i gave back to you last night in my opening, things you had said, decisions you made, these cause concern. we will take up a little more of it tomorrow. thank you for your graciousness. mr. chairman, thank you for the time. chairman durbin: thank you, senator. i want to thank judge jackson for this long day. and part of it under tough circumstances. you were a model of grace under pressure. at times, things were said about you that turned out to be inaccurate. and a was said that you called president bush and secretary rumsfeld war criminals. that didn't happen. it was said that you always sentenced criminals lightly. that wasn't true. it was said you apologized to a defendant in a child pornography case without any empathy for the victims. that wasn't true, either.
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you have been a judge for nearly 10 years. you have sentenced more than 100 defendants, some two decades in prison. and even the child pornography cases that my colleagues continue to raise over and over, your sentences were in line with recommendations of the government at the probation office and the vast majority of these cases that you heard. we invited a number of people to come here today, and one special guest was a lady who cleans our office at night. she works the midnight shift, but wanted to be here today to see you and hear you and stand by your side. and she said afterwards that it was a great moment for her to be in this room today. but she asked my staff, why are some people so mean? the overwhelming majority of us on our side of the aisle were not mean, they were constructive and positive and really raised important questions. some are always going to be this way. that is the nature of human life.
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tomorrow morning, where were together at 9:00 a.m. with jon ossoff and thom tillis. i don't know if america is ready. [laughter] i know that this committee will be ready. thank you. this meeting for the senate judiciary committee will stand in recess. [captions copyright national cable satellite corp. 2022] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit ncicap.org] [indiscernible conversations]
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[indiscernible conversations] chair: i started this day by announcing that this is the second day, known by me as the trial by ordeal. 22 members of the committee, each with 30 minutes of questions. and i thought the jge

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